Franklin v. State
Encyclopedia
Franklin v. State, 257 So.2d 21 (Fla. 1971), was a case in which the Florida Supreme Court
struck down Florida's sodomy law
as being "unconstitutional for vagueness and uncertainty in its language, violating constitutional due process to the defendants." The court retained the state's prohibition on sodomy by ruling that anal
and oral sex
could still be prosecuted under the lesser charge of "unnatural and lascivious" conduct.
" during the early morning hours in a parked car near the St. Petersburg
waterfront. Police charged them with a felony
, punishable by up to 20 years in prison, for violating Florida Statue 800.01, enacted in 1868, which read:
In the case of Delaney v. State, 1966, the high court had previously ruled that although the common law
meaning of "crime against nature" referred only to "copulation per anum and not per os," the courts of Florida had for decades already maintained that F. S. 800.01 included both oral and anal sex, and that the public could easily find out what the statute meant in that regard:
However, five years later in the Franklin case, the court explicitly reversed itself on this point.
Thus, consensual sodomy
was reduced to a misdemeanor
, and the lower court was ordered to find Franklin and Joyce guilty of the lesser crime.
Since the Florida Supreme Court ruling let stand convictions made before 1971, in Wainwright v. Stone two inmates convicted under the 1868 statute, Raymond Stone and Eugene Huffman, brought a case of habeas corpus
before a federal court, arguing that the Florida statute was unconstitutional. The U. S. Court of Appeals for the Fifth Circuit agreed, but on November 5, 1973, the United States Supreme Court reversed the appelate court decision and affirmed the men's convictions in accordance with the Florida Supreme Court's right to declare its ruling not retroactively effective.
and oral sex
, and so allowed Florida police and courts to continue with arrests and convictions for such deeds. For instance, in Thomas v. State, the court said:
These cases included, among others:
tried but failed to agree on a replacement for the "crimes against nature" statute because legislators could not agree on whether opposite-sex couples should be included in the definition of sodomy or not. In fact, Dade County senators introduced an amendment to decriminalize all consenting-adult sex, but the proposal was defeated 24-18. Finally in 1974, the Legislature recodified and retained the "lewd and lascivious" section as a second-degree misdemeanor (punishable by a fine of $500 or up to 60 days in jail), which thereafter functioned as the state's sodomy law, enforceable against both same-sex and opposite sex couples, but primarily used to stigmatize gays and lesbians as criminals whenever the state considered an issue dealing with their civil rights.
The United States Supreme Court's 2003 ruling in Lawrence v. Texas
struck down all remaining sodomy laws nationwide, including Florida's, as being unconstitutional violations of due process and privacy. Nonetheless, as of mid-2011, the law remained part of Florida Statutes.
In 1977, following the defeat of a gay-rights ordinance in Miami-Dade County in the face of massive opposition organized by the Save Our Children
campaign, Anita Bryant
urged the Legislature to reinstate the "crimes against nature" law. Legislators declined to do so, but instead passed a law forbidding adoption by gays and lesbians
which remained in force until overturned as unconstitutional by a Florida appeals court in 2010.
Florida Supreme Court
The Supreme Court of the State of Florida is the highest court in the U.S. state of Florida. The Supreme Court consists of seven judges: the Chief Justice and six Justices who are appointed by the Governor to 6-year terms and remain in office if retained in a general election near the end of each...
struck down Florida's sodomy law
Sodomy law
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms...
as being "unconstitutional for vagueness and uncertainty in its language, violating constitutional due process to the defendants." The court retained the state's prohibition on sodomy by ruling that anal
Anal sex
Anal sex is the sex act in which the penis is inserted into the anus of a sexual partner. The term can also include other sexual acts involving the anus, including pegging, anilingus , fingering, and object insertion.Common misconception describes anal sex as practiced almost exclusively by gay men...
and oral sex
Oral sex
Oral sex is sexual activity involving the stimulation of the genitalia of a sex partner by the use of the mouth, tongue, teeth or throat. Cunnilingus refers to oral sex performed on females while fellatio refer to oral sex performed on males. Anilingus refers to oral stimulation of a person's anus...
could still be prosecuted under the lesser charge of "unnatural and lascivious" conduct.
Issue
The case involved two men, Alva Gene Franklin and Stephen F. Joyce, who were arrested for committing a "crime against natureCrime against nature
Crime against nature is a legal term used in published cases in the United States since 1814 and normally defined as a form of sexual behavior that is not considered natural and is seen as a punishable offense in dozens of countries and several U.S. states...
" during the early morning hours in a parked car near the St. Petersburg
St. Petersburg, Florida
St. Petersburg is a city in Pinellas County, Florida, United States. It is known as a vacation destination for both American and foreign tourists. As of 2008, the population estimate by the U.S. Census Bureau is 245,314, making St...
waterfront. Police charged them with a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
, punishable by up to 20 years in prison, for violating Florida Statue 800.01, enacted in 1868, which read:
Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be punished by imprisonment in the state prison not exceeding twenty years.
In the case of Delaney v. State, 1966, the high court had previously ruled that although the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
meaning of "crime against nature" referred only to "copulation per anum and not per os," the courts of Florida had for decades already maintained that F. S. 800.01 included both oral and anal sex, and that the public could easily find out what the statute meant in that regard:
Pointing out that the statute, without further definition, merely prohibits ". . . the abominable and detestable crime against nature, either with mankind or with beast . . . ," the State logically posed the question whether it is easier for the public, or a defendant, to determine the nature of this crime by researching the history of the common law or the case law of this state. Although the opinions of this court are not always the essence of clarity, and never as lucid as we would have them, in this instance those previously rendered on this subject clearly advise all people that in this state the abominable crime against nature includes copulation either by mouth or by anus. These decisions are certainly more readily available and more easily understood than the common law.
We conclude, therefore, that Section 800.01, as previously construed by this court in the cited cases, does prohibit the act charged against this appellant, and did and does afford him, and all others persons, notice that the act complained of was a crime in this state with at least the degree of definiteness required by our constitutions.
However, five years later in the Franklin case, the court explicitly reversed itself on this point.
Decision
In its decision, issued on December 17, 1971, the Supreme Court overturned the felony convictions of Franklin and Joyce, which had been upheld on appeal by a district court, and stated:The renewed attack on the language of this statute for constitutional vagueness and overbreadth is not surprising in view of the guarded wording used in such statutes in 1868 when it was drafted. A very serious question is raised as to whether the statute meets the recognized constitutional test that it inform the average person of common intelligence as to what is prohibited so that he need not speculate as to the statutory meaning. If the language does not meet this test, then it must fall and the matter must be left to legislative correction. . . .
The language in this statute could entrap unsuspecting citizens and subject them to 20-year sentences for which the statute provides. Such a sentence is equal to that for manslaughter and would no doubt be a shocking revelation to persons who do not have an understanding of the meaning of the statute. . . .
The statute, 800.01, is void on its face as unconstitutional for vagueness and uncertainty in its language, violating constitutional due process to the defendants. We anticipate and recommend legislative study of the subject and, pending further legislation in the matter, society will continue to be protected from this sort of reprehensible act under Section 800.02, Florida Statutes, F.S.A., which provides: "Unnatural and lascivious act. Whoever commits any unnatural and lascivious act with another person shall be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding six months."
Under the evidence in this case, the conduct denounced in Section 800.02, Florida Statutes, F.S.A., is a lesser included offense. Accordingly we must, without any criticism of the able trial jurist who was following the decisions then existing, reverse the two judgments adjudging the defendants of being guilty of a felony and remand the causes to the trial court with directions to enter a judgment of guilty of Section 800.02 which is a misdemeanor, and to impose sentence accordingly. In view of our former decisions, this judgment holding the felony statute void is not retroactive, but prospective only. We recede from prior opinions inconsistent with this holding.
Thus, consensual sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
was reduced to a misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
, and the lower court was ordered to find Franklin and Joyce guilty of the lesser crime.
Since the Florida Supreme Court ruling let stand convictions made before 1971, in Wainwright v. Stone two inmates convicted under the 1868 statute, Raymond Stone and Eugene Huffman, brought a case of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
before a federal court, arguing that the Florida statute was unconstitutional. The U. S. Court of Appeals for the Fifth Circuit agreed, but on November 5, 1973, the United States Supreme Court reversed the appelate court decision and affirmed the men's convictions in accordance with the Florida Supreme Court's right to declare its ruling not retroactively effective.
Other cases
In other cases after 1971, the Florida Supreme Court held that the average citizen of the time would be baffled by the meaning of "detestable and abominable crime against nature" (written in 1868) but would clearly understand that the phrase "unnatural and lascivious act" (written in 1917) referred to both anal sexAnal sex
Anal sex is the sex act in which the penis is inserted into the anus of a sexual partner. The term can also include other sexual acts involving the anus, including pegging, anilingus , fingering, and object insertion.Common misconception describes anal sex as practiced almost exclusively by gay men...
and oral sex
Oral sex
Oral sex is sexual activity involving the stimulation of the genitalia of a sex partner by the use of the mouth, tongue, teeth or throat. Cunnilingus refers to oral sex performed on females while fellatio refer to oral sex performed on males. Anilingus refers to oral stimulation of a person's anus...
, and so allowed Florida police and courts to continue with arrests and convictions for such deeds. For instance, in Thomas v. State, the court said:
We adhere to recent decisions of this Court holding that the words "unnatural and lascivious" as used in Section 800.02, Florida Statutes, are not void for vagueness and that these words are of such a character that an ordinary citizen can easily determine what character or act is intended.
These cases included, among others:
- Morris v. State, 261 So. 2d 563, April 7, 1972
- Witherspoon v. State, 278 So. 2d 611, May 30, 1973
- State v. Fasano, 284 So. 2d 683, October 17, 1973
- Thomas v. State, 326 So. 2d 413, December 3, 1975
Legislation
The 1972 Florida LegislatureFlorida Legislature
The Florida State Legislature is the term often used to refer to the two houses that act as the state legislature of the U.S. state of Florida. The Florida Constitution states that "The legislative power of the state shall be vested in a legislature of the State of Florida," composed of a Senate...
tried but failed to agree on a replacement for the "crimes against nature" statute because legislators could not agree on whether opposite-sex couples should be included in the definition of sodomy or not. In fact, Dade County senators introduced an amendment to decriminalize all consenting-adult sex, but the proposal was defeated 24-18. Finally in 1974, the Legislature recodified and retained the "lewd and lascivious" section as a second-degree misdemeanor (punishable by a fine of $500 or up to 60 days in jail), which thereafter functioned as the state's sodomy law, enforceable against both same-sex and opposite sex couples, but primarily used to stigmatize gays and lesbians as criminals whenever the state considered an issue dealing with their civil rights.
The United States Supreme Court's 2003 ruling in Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
struck down all remaining sodomy laws nationwide, including Florida's, as being unconstitutional violations of due process and privacy. Nonetheless, as of mid-2011, the law remained part of Florida Statutes.
In 1977, following the defeat of a gay-rights ordinance in Miami-Dade County in the face of massive opposition organized by the Save Our Children
Save Our Children
Save Our Children, Inc. was a political coalition formed in 1977 in Miami, Florida, U.S. to overturn a recently legislated county ordinance that banned discrimination in areas of housing, employment, and public accommodation based on sexual orientation...
campaign, Anita Bryant
Anita Bryant
Anita Jane Bryant is an American singer, former Miss Oklahoma beauty pageant winner, and gay rights opponent. She scored four Top 40 hits in the United States in the late 1950s and early 1960s, including "Paper Roses", which reached #5...
urged the Legislature to reinstate the "crimes against nature" law. Legislators declined to do so, but instead passed a law forbidding adoption by gays and lesbians
In re: Gill
In re: Gill is a landmark Florida court case that in 2010 ended Florida's 33-year ban on adoptions by homosexuals. In 2007 Frank Martin Gill, an openly gay man, had petitioned the circuit court to adopt two boys that he and his partner had been raising as foster children since 2004...
which remained in force until overturned as unconstitutional by a Florida appeals court in 2010.
See also
- Florida Legislative Investigation CommitteeFlorida Legislative Investigation CommitteeThe Florida Legislative Investigation Committee was established by the Florida Legislature in 1956, during the era of the Second Red Scare and the Lavender Scare...
- Homosexuality and Citizenship in FloridaHomosexuality and Citizenship in FloridaHomosexuality and Citizenship in Florida, also known as the Purple Pamphlet, was published in January 1964 by the Florida Legislative Investigation Committee of the Florida legislature led by Senator Charley Johns. The booklet contained several pornographic images and a glossary of terminology used...
- Lawrence v. TexasLawrence v. TexasLawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
- LGBT rights in FloridaLGBT rights in FloridaLGBT people in the U.S. state of Florida face legal challenges not experienced by non-LGBT residents.- Law regarding same-sex sexual activity :...
- Sodomy laws in the United StatesSodomy laws in the United StatesSodomy laws in the United States, which outlawed a variety of sexual acts, were historically universal. While they often targeted sexual acts between persons of the same sex, many statutes employed definitions broad enough to outlaw certain sexual acts between persons of different sexes as well,...