Thompson v. Aldredge Dismisses Sodomy Charges Against Lesbians

The Georgia Supreme Court found that the definition of “sodomy” as outlined in Georgia state law cannot be applied to sex between women. The law remained on the books until 1968, when the state amended its criminal code and included oral sex between women in its legal definition of sodomy. Sodomy remained illegal in Georgia and many other states until the U.S. Supreme Court, in 2003, ruled that private, consensual sex between adults, including oral sex, was legal.

Date January 12, 1939

Locale Georgia

Key Figures

• Ella Thompson found guilty of sodomy
• J. C. Aldredge sheriff of Fulton County, Georgia
• Warren Grice justice of the Georgia Supreme Court and author of the Thompson v. Aldredge decision

Summary of Event

Georgia was a relative latecomer in defining and prosecuting illegal sexual behavior. In 1791, when the U.S. Bill of Rights was adopted, the only colony of the thirteen colonies without laws regulating consensual sex was Georgia. An 1817 Georgia law did order a life sentence for those convicted of sodomy, but the acts covered under the term “sodomy” were not described. Beginning in 1833, Georgia common law defined sodomy as “the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.”

Although Georgia’s definition was rather vague, it was more specific than those of many states and territories. In general, it was understood that the behaviors forbidden were heterosexual or homosexual anal intercourse. Oral sex was neither mentioned nor implied, and it does not appear to have occurred to the drafters that two women might engage in sexual acts. In a 1904 decision, the Supreme Court of Georgia amended the sodomy laws to include oral sex performed on a man, reasoning that oral contact with the penis was “baser” than anal contact, and would have been specifically forbidden if the act had been more common at the time of the original law. In 1917, the court ruled that a man performing oral sex on a woman had also committed sodomy. Although this act does not appear to fit the definition in the 1833 codes, the majority of the justices argued that the connection was implied.

In 1939, Ella Thompson and a female partner were arrested and accused of engaging in oral sex, albeit private and consensual. Legal records do not explain how they were discovered in a sexual act, and the name of Thompson’s partner never was revealed. Fulton County sheriff J. C. Aldredge filed charges against Thompson and her partner, including the crime of sodomy, and the two were found guilty. Thompson appealed, claiming that under Georgia law two women could not commit sodomy. Her case made it to the Georgia Supreme Court, where the guilty verdict was overturned.

Although Justice Warren Grice wrote that the acts committed by Thompson and her partner were “just as loathsome” as sex between two men, the judges nevertheless found unanimously that the definitions then on the books did not specifically include the acts the women were accused of performing, and so the women could not be guilty of sodomy. The drafters of the law had not included prohibiting sex between two women, and the court believed it was not justified to read into the definition something that was not explicitly stated. The decision by Judge Paul S. Etheridge of the Superior Court, Fulton County, was reversed.

Significance

After Thompson v. Aldredge, there were no prosecutions for private consensual homosexual sodomy (female or male) in Georgia for several decades. It is reasonable to conclude that the courts recognized that the language of the codes was sufficiently vague to make prosecutions difficult, and yet there was a resistance among legislators to taint legal documents with more specific and precise language describing sexual acts.

A 1949 revision of the sodomy laws in Georgia decreased the penalty from life imprisonment to one-to-ten years in prison. In spite of the Thompson v. Aldredge decision, the revision did not add language addressing sexual behavior between women. In 1968, the criminal code again was revised. The new language was more explicit in describing sexual acts, and for the first time it included oral sex between women.

In 1986, the U.S. Supreme Court agreed to rule on another Georgia case, Bowers v. Hardwick. In that suit, Michael Hardwick challenged the constitutionality of the Georgia statute that defined consensual oral sex between two men as sodomy. In the majority opinion, the court upheld Georgia’s code, finding that based on the country’s history and tradition, there is no constitutional right to privacy that would override a state’s right to criminalize homosexual behavior.

Oral arguments in Bowers v. Hardwick referred to Thompson v. Aldredge, and the state acknowledged that it had not prosecuted anyone for consensual sodomy since that case. Hardwick believed that because there had been no further prosecutions, this indicated that the people of the state had little interest in criminalizing private consensual sexual activity. The court ruled, though, that the lack of prosecutions did not affect the constitutionality of the statutes.

In 2003, however, the U.S. Supreme Court, in Lawrence v. Texas, ruled that private, consensual sex, heterosexual and homosexual, between adults was protected behavior, thus overturning Georgia’s sodomy laws and the sodomy laws of all U.S. states.

Bibliography

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Harris, John B., ed. A History of the Supreme Court of Georgia: A Centennial Volume. Macon, Ga.: J. W. Burke, 1948.

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