As stated previously, some states include rape, sodomy, and oral copulation in a sexual assault or sexual conduct statute that criminalizes a variety of sexual acts involving penetration. 1 In states that distinguish between rape and sodomy, the criminal act element of sodomy is often defined as forcible penis to anus penetration. 2 Typically, the other sodomy elements, including the lack of consent attendant circumstance, criminal intent, causation, and harm, are the same as the elements of rape. Many jurisdictions also grade sodomy the same as rape. Grading is discussed shortly.
Sodomy that is nonforcible but committed with an individual below the age of legal consent is also criminal. 3 As stated previously, the US Supreme Court has held that statutes criminalizing sodomy between consenting adults unreasonably encroach on a right to privacy without a sufficient government interest. 4
In some states, consensual nonforcible sodomy is criminal if it is committed in a state penitentiary orlocal detention facility or jail. 5 In states that distinguish between rape, sodomy, and oral copulation, the criminal act element of oral copulation is forcible mouth to sexual organ or anus penetration. 6 Typically, the other oral copulation elements, including the lack of consent attendant circumstance, criminal intent, causation, and harm, are the same as the elements of rape. Many jurisdictions also grade oral copulation the same as rape. Grading is discussed shortly.
A few states still criminalize oral copulation with consent. 7 Based on the US Supreme Court precedent relating to sodomy, these statutes may be unenforceable and unconstitutional.
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