On June 6th 1667, the General Court of Plymouth added several capital crimes to those listed in the previous years.. One of these laws was the “sodomy” (gay sex) statute stating that those who commit sodomy shall be put to death, but with a caveat making persons under fourteen and the party of forced sodomy not punishable by death. The further qualification, that “all other sodomitical filthiness” shall be punished according to its nature, may have meant that anal penetration was necessary for the death penalty, and that other types of non-penetrative, “sodomitical” (sodomy-like) acts, such as mutual or public masturbation, were not as punished so severely.
The sixteen crimes punishable by death in the Plymouth law of 1671 were listed as: (1) “Idolatry,” (2) “Blasphemy,” (3) “Treason,” (4) “Conspiring against this Juristiction” (attempted invasion, insurrection, or rebellion), (5) “Willful murder,” (6) “Sudden Murder in Passion,” (7) “Murder by Guile or Poisoning,” (8) “Witchcraft,” (9) “Bestiality,” (10) “Sodomy,” (11) “False-witness,” (12) “Man-stealing,” (13) “Cursing or Smiting Father or Mother,” (14) “The Rebellious Son,” (15) “Rape,” (16) “Willful burning of Houses, Ships, etc.”
The provision, whose margin referred to “sodomy” reads:
If any Man lyeth with Mankind, as he lyeth with a Woman, both of them have committed Abomination; they both shall surely be put to Death, unless the one party were forced, or be under fourteen years of Age: And all other Sodomitical filthiness, shall be surely punished according to the nature of it.
This Plymouth law was revised when Plymouth was united with Massachusetts in 1697.
But make no mistake sodomy was still punished by death in the early 1600’s. Just not “legally”.
According to Raymond Paternoster’s Capital Punishment in America (1991), during the 1600s there were a total of five documented death sentences in the colonies for same‑sex sodomy during the 1600s, two each in Connecticut and New York, and one in Virginia. In addition, there was another prosecution in New York in which the records do not show disposition of the case. There were a total of 162 known death sentences carried out in all the colonies during the century, making the five known for same-sex sodomy about 3% of the total. The number of executions does not, of course, indicate the impact and effect of such executions.
According to the online Executions in the U.S. 1608-1987: The Espy File (s) there were 10 known executions for sodomy or buggery (same-sex or different sex, human-human or human-beast, or act type unspecified) in the colonies between 1625 and 1674. One of those executions was in Virginia, two in New York, three in Massachusetts, and four in Connecticut. Between 1757 and 1801 there were five executions for sodomy or buggery. Three were in New Jersey, one in Pennsylvania, and one under Spanish law in California.
In 1642, Edward Preston was sentenced to be publicly whipped at both Plymouth and Barnstable “for his lewd practices tending to sodomy with Edward Mitchell, and pressing John Keene thereunto (if he would have yielded).” Keene, who had reported the crime, was required to watch the punishment because he was suspected of “not being without fault himself.” No death penalty here, since the actions of Preston and Mitchell only “tended toward sodomy.”