Abominable & Detestable Crime

"Whoever commits the abominable and detestable crime against nature with mankind or beast shall be deemed guilty of sodomy." In such indirect language, an Indiana statute makes oral or anal intercourse a crime. Even if he knew about the law, Charles Cotner of Jasper County, Ind., could hardly believe that it covered married couples in the privacy of their bedrooms.

"We never had an idyllic marriage," says Cotner, but "whatever quarrels we had were always made up amicably after we'd had a chance to cool off." At least it remained that way through ten years of marriage. Then, in 1965, a family squabble took longer than usual to simmer down. While still angry, Mrs. Cotner decided to get back at her husband by filing a sodomy charge against him. But before the case came to court, Mrs. Cotner changed her mind and tried to withdraw her complaint. She was too late; the state said that it was a criminal matter, and her husband was charged with having had anal intercourse with her. Cotner refused a lawyer, pleaded guilty and threw himself on the mercy of the court--his wife, after all, had not accused him of using force, and he was sure he would get a suspended sentence or at most a short term. Instead, to his surprise, he was sentenced to from two to 14 years in the Indiana state prison.

Closed Doors. The same thing could have happened to Cotner in most other states. Virtually all of them have anti-sodomy statutes similar to Indiana's--many phrased with matching euphemism. Illinois and a few others except all consenting adults, and most law-enforcement agencies do not bother with such cases. Cotner nonetheless faced a long term, since convicted sex offenders rarely win parole until most of their sentence is up.

But when Playboy magazine heard about his predicament, Publisher Hugh Hefner's Playboy Foundation helped underwrite a habeas corpus petition. On the narrow legal ground that he was allowed to plead guilty without having been informed that he could have attacked the sodomy law constitutionally, the U.S. Seventh Circuit Court of Appeals has just thrown out Cotner's conviction by a 2-to-l vote. He is now free, after having served three years of his sentence, and is living with his grandmother in Illinois.

The court carefully avoided ruling on the constitutionality of the law, but it left little doubt about its opinion. It cited Griswold v. Connecticut, a 1965 Supreme Court decision holding that married couples cannot be prosecuted for using birth-control devices because there is a substantial right to marital privacy, "The import of the Griswold decision," said the Seventh Circuit, "is that private, consensual, marital relations are protected from regulation by the state."

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