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One of the first diaries I read today was the one by Celtic Merlin on the Recommended List: You may not be a fan of Playboy, but you gotta love what Hugh Hefner has written. I took CM's advice, and read the entire article. I was intrigued by the case Hefner talks about in the opening paragraph:

In 1965 Indiana police arrested Charles Cotner and charged him with an “abominable and detestable crime against nature.” His offense? Consensual anal sex with his wife. He faced 14 years in prison. When I first learned about Cotner’s case—his attorney wrote to PLAYBOY to seek our assistance—I was appalled. His wife, who signed the complaint after the couple had argued, changed her mind and asked to have the charges dropped. But the judge refused, and Cotner served nearly three years in prison before the Playboy Foundation was able to free him.

Sexual Freedom

I'm usually curious about the story behind a story, and thought others would be too. I think that's why I enjoy watching Rachel Maddow because she usually introduces her segments with an explanation of the background that leads to the story she is about to present. My Google search did not result in a lot of information. There was no entry in Wikipedia for Charles Cotner. I was, however, able to find enough information to learn most of the details of the case.

The beginning of this story can be found on the first page of an article by Jon D. Krahulik. Only the first page of the article is available at Heinonline (you have to purchase a subscription to read the rest of the article). Here's the original complaint signed by his wife:

That on or about the seventh of May, 1968, at and in the County of Jasper, in the state of Indiana, Charles O. Cotner did then and there unlawfully and feloniously commit the abominable and detestable crime against nature with one Jeane Cotner, a human being, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.

ss Jeane Cotner

Cotner thought he was going to hire his own attorney, so when he was arraigned he refused a court-appointed attorney. His wife had told him that she was dropping the charges before his second appearance, and asked the court, "My wife changed it didn't she? She said she was going to drop the charge." The judge answered Cotner by saying, "Well, your wife hasn't any right to change anything. The State of Indiana is the Plaintiff and not your wife." Suddenly an argument between a husband and wife in the privacy of their own home, had turned into a criminal case against the husband with the full weight of the State of Indiana against him.

Cotner plead guilty to the charges, without consulting an attorney, "because he thought that in this enlightened age he would be given either a suspended sentence or a short term of imprisonment." Remember, "this enlightened age" was 47 years ago. At sentencing Cotner replied to the question, "are there any legal reasons why the court should not pronounce sentence?":

Well, the only reason I can think of is that I have five kids and my wife would have a hard time making it if I would get time out of it.
The court sentenced Cotner to "not less than two nor more than fourteen years in the state reformatory." And then the appeals process began and, as Hefner noted, "Cotner served nearly three years in prison before the Playboy Foundation was able to free him." What happened to Cotner's wife and five children during that time? I don't know because unless somebody has written down and told the entire story, and turned it into a book and/or movie, we don't often get to know the collateral damages in cases like this.

It took an appeal in federal court to finally overturn Cotner's guilty plea. Now, this was 1965, when domestic abuse was often overlooked as a crime, and you might be thinking that this could be a case of domestic abuse masquerading as a sodomy case. The United States Seventh Circuit Court of Appeals, addressed that possibility by answering the Constitutional Questions in its ruling on April 17, 1968:

Cotner attacks the Indiana Sodomy Statute on the ground that it violates Article I, Sec. 12 of the Indiana Constitution, and the Fourteenth Amendment of the United States Constitution, because it is vague and because, as applied, it violates his right of privacy under the Supreme Court decision in Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.2 In Griswold the Supreme Court recognized a constitutional right to marital privacy and held that the right is violated by the imposition of criminal sanctions for the use of birth control devices by married couples. The import of the Griswold decision is that private, consensual, marital relations are protected from regulation by the state through the use of a criminal penalty.

No appellate court in Indiana has had the opportunity to interpret the Indiana Sodomy Statute in light of its potential application to the privacy of married couples. Under Griswold Indiana courts could not interpret the statute constitutionally as making private consensual physical relations between married persons a crime absent a clear showing that the state had an interest in preventing such relations, which outweighed the constitutional right to marital privacy. The Indiana courts might, however, construe the statute as being inapplicable to married couples or as outlawing such physical relations between married couples only when accomplished by force. Under the latter interpretation, the protection of the Griswold rule would not be available to Cotner if there was a showing that Cotner employed force.

Cotner was charged by his wife, in an affidavit, with the commission of an act of sodomy. The affidavit contained no charge that he used force. He was prosecuted under a statute which prohibits sodomy but which does not explicitly mention force and which no Indiana court has construed as requiring force when applied to married couples in the privacy of the bedroom. The circumstances revealed by the present record show that Cotner was not given adequate notice of any allegation, or any need of an allegation, of force, or of a defense of consent. The charge was merely read to him.

He was allowed to waive his right to counsel and to plead guilty without being informed that there was a substantial question later revealed by Griswold, whether certain acts by married people with mutual consent can constitutionally be prohibited by the state.

Because of these circumstances, Cotner's conviction must be vacated as based on a plea of guilty which was not made with a full understanding of the charge against him.

Cotner v. Henry, 394 F.2d 873

What does a 47-year-old sodomy case have to do with the issues about the abortion debate we're having today? A lot because it is an example of the government, or more accurately some elected officials in our government and those who elected them, trying to legislate morality and intrude into the private lives of its citizens.

Abortion is a subject that I have rarely pondered in my life. Until now, my own recollection of thinking about it is having driven by a clinic twenty or thirty years ago, and seeing adults and children outside protesting with signs on a Saturday afternoon. I remember thinking at the time, don't these people have anything better to do with their Saturday then worry about other people's private choices?

Personally, as a woman, it is not a course of action I would have chosen for myself because I always wanted to have children but was never able to. I don't know what choice I would have made had I ever become pregnant as a result of rape, or if the pregnancy endangered my own life, or if any number of questions about the pregnancy would require me to consider the option of terminating the pregnancy. These are situations I've never encountered, but I do know that if I had had to face that decision, I would want to make my choice privately in consultation with my doctor and my family. These are private choices that when faced by others are none of my business, and are not the business of my government or any other citizens in this country other than those personally involved.

The kind of bills that legislators like Todd Akin and Paul Ryan want to make the law of the land, would not only criminalize all abortions, which since 1975 polls show is only a position that has been supported by at least 12%, or at most 23% of this country; the "personhood" bills they are pushing would also outlaw most hormonal contraception as well as in vitro fertilization. What does this mean? Not only do they want to stop abortion, they want to stop people from preventing pregnancy.

While the silent majority has become complacent in assuming that our freedom from government intervention into our private lives is secure, this radical fringe has been organizing and electing people who represent their views like Todd Akin and Paul Ryan into office, and they will not stop. If you doubt the strength of their determination to inflict their minority religious and social agenda on the rest of the nation, just take a look at Colorado. As Rachel Maddow has including in her reporting several times, in 2008 the question of personhood  was on the ballot in Colorado and was defeated [26.7% Yes to 73.2% No]. It was on the ballot in 2010, and again defeated [29.4% Yes to 70.5% No]. Did those two defeats deter the activists? No.

The Colorado Personhood Coalition Monday submitted more than 121,000 signatures to the secretary of state to get its anti-abortion measure on the November ballot.

The group, which claims 1,500 volunteers and the engagement of 500 churches in the cause, needs about 86,000 validated signatures to get the measure before voters again. This would be the group's third try since 2008 to amend the state Constitution.

Personhood USA founder Keith Mason said the ballot language this year is different. It would extend constitutional rights to all humans at any stage of development by stating that protections of life "apply equally to all innocent persons." It would "prohibit the intentional killing of any innocent person."

Mason said the amendment expressly would not prohibit all forms of contraception, in vitro fertilization or medical treatment for a pregnant woman with a life-threatening medical condition. It would not criminalize spontaneous miscarriages, he said, as opponents have claimed past measures would.

Signatures turned in for Colorado anti-abortion measure, The Denver Post, August 6, 2012

This time they are trying to claim that they have edited the language of the amendment to make it more palatable for those who voted against it in 2008 and 2010, but do not be fooled this slight of hand. Just read the text of the amendment. This is a law that is only supported by about 20% of the country. Is the silent majority waking up or will it stay silent long enough for these ballot measures to eventually succeed?
This is a religious nation, but it is also a secular one. For decades the American people have found a way to balance religious beliefs with secular freedoms. We have enjoyed freedom of religion as well as freedom from religion. These need not be incompatible. No one should have to subjugate their religious freedom, and no one should have their personal freedoms infringed. This is America and we must protect the rights of all Americans.

Sexual Freedom, Hugh M. Hefner

UPDATE: I just wanted to point you to a companion diary that idbecrazyif just posted, Elections Matter, State Edition: Where Judges Comes From. It's a well written essay about the importance of this year's presidential election with regard to who is appointed to the Supreme Court during the course of the next four years, and a lesson in how judges are selected in Indiana where the Cotner case took place.

Originally posted to hungrycoyote on Sat Aug 25, 2012 at 01:00 PM PDT.

Also republished by Community Spotlight.

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