Nevada repealed its anti-sodomy legislation in 1993. Formerly called “the infamous crime against nature,” sodomy comprised all penetrative sex except for vaginal intercourse.
At present, there are only three acts of sodomy that remain illegal in Nevada:
- forcible sodomy,
- sodomy with a minor below the age of consent of 16,
- or performing oral or anal sex in public.
Therefore, both same-sex and opposite-sex consenting adults are free to engage privately in fellatio, cunnilingus, and anal intercourse in Nevada.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is sodomy in Nevada?
- 2. What are the penalties under 201.190?
- 3. What are common defenses?
- 4. What is the old sodomy law in Nevada?
Nevada’s sodomy laws used to prohibit oral and anal sex.
1. What is sodomy in Nevada?
Formerly in Nevada, the legal definition of sodomy referred to any sex act involving penetration that was not vaginal intercourse. This means that before Nevada’s sodomy law was repealed in 1993, you could have been arrested and imprisoned for having oral or anal sex, irrespective of your gender.
Currently, it is legal in Nevada for consenting adults to engage in oral sex and anal sex. (Nevada’s age of consent is 16). Now all that remains of the state’s anti-sodomy statute NRS 201.190 is the following prohibition: Performing oral or anal sex in public.
This law is strangely narrow because NRS 201.190 does not prohibit having vaginal sex in public. However, there is another law that forbids public sex acts, vaginal or not: Open and gross lewdness (NRS 201.210).1
2. What are the penalties under NRS 201.190?
It is a category D felony in Nevada for adults to have anal or oral sex in public. (This is all that remains of Nevada’s sodomy statute.) The standard sentence includes:
- 1 – 4 years in Nevada State Prison,
- Up to $5,000 in fines (at the judge’s discretion), and
- Tier I Nevada sex offender registration (NRS 179D.113)
Otherwise, having non-vaginal penetrative sex is legal as long as it is consensual.2
Having oral or anal sex in public is a category D felony.
Non-consensual sodomy
Non-consensual penetrative sex is prosecuted as sexual assault (NRS 200.366). (It does not matter whether the sex is vaginal or not.)
Also called rape, sexual assault is a category A felony. It carries a life sentence and Tier III sex offender registration (NRS 179D.117). The judge may permit parole. It depends on the victim’s age and defendant’s criminal history.
| Victim’s age | Nevada punishment for rape |
| 16 or older |
|
| Under 16, and the defendant has no prior sex offense convictions |
|
| Under 16, and the defendant has a prior sex offense conviction |
|
Note that children under 16 years old typically may not consent to penetrative sex. (It does not matter whether the sex is vaginal or not.) The only exception to the age of consent rule is if:
- The child is 14 or 15, and
- The child is less than four years younger than the defendant
Unless this close-in-age exception applies, having sex with a child under 16 is statutory sexual seduction (NRS 200.368). This is also called statutory rape. It can be a felony or gross misdemeanor. It depends on the defendant’s age.
| Defendant’s age | Nevada punishment for statutory sexual seduction |
| 21 or older | Category B felony:
|
| Under 21 | Gross misdemeanor if defendant has no prior sex crime convictions:
Category D felony if the defendant has a prior sex crime conviction:
|
3. What are common defenses?
Nevada’s anti-sodomy law under NRS 201.190 is very narrow. So there are only a few specific defenses that could fight the charge of having oral or anal sex in public. Five include:
- The defendant was falsely accused. Perhaps someone tried to get the defendant in trouble out of anger or revenge.
- The defendant was misidentified. Maybe the police mistook the real suspect for the defendant by accident.
- The defendant was under 18. NRS 201.190 only applies to adults, not minors.5 But an underage defendant could still face other charges for public intimacy.
- No oral or anal sex was performed. However, defendants face open and gross lewdness charges for performing other sex acts in public.
- The sex acts did not occur in public view. As long as the sex happened in a private place where the public could not see, then no crime occurred.
Typical evidence in these cases includes video surveillance and eyewitnesses. It is not a defense that the sex act was consensual or that no member of the public happened to see the sex act.
4. What is the old sodomy law in Nevada?
The original version of NRS 201.190 from 1911 referred to sodomy as “the infamous crime against nature.” The statute stated:
The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the state prison for a term not less than one year and that may be extended to life.
“The infamous crime against nature” is not very specific. So the Nevada Supreme Court defined it in 1914:
It is not unreasonable to assume that all unnatural acts of carnal copulation between man with man or man with woman, whereby a penetration is effected into any opening of the body other than that provided by nature for the reproduction of the species, are sufficiently contemplated and embraced within the term “infamous crime against nature.”6
In short, sodomy used to mean any penetrative sex act that could not result in procreation. (The original definition also prohibited sex with animals. This is still a crime under NRS 201.455 (bestiality), which was enacted only in 2017.7)
In Nevada, sodomy was officially decriminalized in 1993.8 This was a full ten years before the United States Supreme Court held that a Texas statute prohibiting homosexual sex was unconstitutional.9
Legal References
- NRS 201.190.
- Same.
- NRS 200.366.
- NRS 200.368.
- Lucas v. Sheriff, Clark County, 95 Nev. 61, 589 P.2d 176 (1979).
- In re Benites, 37 Nev. 145, 140 P. 436 (1914).
- Nevada Assembly Bill 391 (1997).
- Nevada Senate Bill 466 (1993), introduced by state senator Lori Lipman Brown.
- Lawrence v. Texas (2003) 539 US 558.