The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2002
Illinois
"The existence of such an offense is a disgrace to
human nature."
The Post-Revolution Period, 1776-1873
After the Revolution, Illinois, as part of the original Northwest
Territory, received the English buggery law with a 1795 Northwest Territory
ordinance,1 thus making sodomy a capital offense
for males only.
In 1809, the Illinois Territory was created and a statute adopted all laws
of the Indiana Territory, in place of the Northwest Territory law.2
The harsh code of Indiana adopted by Illinois provided for a penalty of up to
five years in prison, a fine of $100-$500, and up to 500 lashes.3
This statute remained until a new law was adopted after statehood. In 1819,
a law was adopted4 to revise criminal penalties.
The sodomy penalty was changed slightly to set the jail term at 1-5 years, and
the flogging penalty at 100-500 lashes. The fine remained unchanged.5
A supplemental law adopted the common law of England and all English
statutes in support of the common law adopted prior to the Jamestown
settlement.6 This would outlaw sodomy even in
the absence of a sodomy law.
The severe sodomy law apparently was not considered severe enough. In 1845,
a new statute7 was enacted that removed the fine
and flogging provision, but increased the prison term to one year-life.8
The crime was complete upon penetration only.9
Period Summary: Illinois received the laws of England via a law
of the Northwest Territories, thus mandating a death sentence for sodomy.
Upon separation from the Indiana Territory, it received the harsh sodomy
law of Indiana that included a flogging provision. When Illinois adopted
its own code, it retained the flogging provision and later raised the
maximum penalty to life imprisonment.
The Victorian Morality Period, 1873-1948
I. Sodomy
A new code adopted in 1874 changed the penalty to a maximum of 10 years,
with no minimum specified.10
The first reported sodomy case in Illinois, Honselman v. People,11
made history in the United States in 1897. The question presented to the
Illinois Supreme Court was whether fellatio constituted the "crime
against nature." Charles Honselman was a police officer who had been
accused of the act by a 16-year-old boy.12
Justice James Cartwright, writing for a unanimous Court, moralized before
making a decision. Sodomy "with due regard to the sentiments of decent
humanity, has always treated as one [crime] not fit to be named."13
The
existence of such an offense is a disgrace to human nature. The
legislature has not seen fit to define it further than by the general
term, and the records of the courts need not be defiled with the details
of different acts which may go to constitute it.14
The Court based its decision on a statute that permitted anyone convicted
of "sodomy or other crime against nature" to be denied civil
rights [emphasis added].15
The method employed in this case is as much against nature, in the
sense of being unnatural and against the order of nature, as sodomy or any
bestial or unnatural carnal copulation that can be conceived. It is within
the statute.16
This was the first time in the United States that fellatio was held to be
an act of sodomy.
The Illinois Supreme Court was faced in its next case, in 1901, with a
question of overruling the Honselman precedent. In Kelly v. People,17
the Court felt the need again to express moral outrage over fellatio before
making its decision. "[S]uch a crime cannot be described without shocking
the moral sensibilities."18 Kelly had
argued that Honselman had been decided incorrectly and asked that it be
overruled. The Illinois Supreme Court replied: "This we have no
disposition to do."19
The next sodomy case also made history. Illinois had been the first state
to recognize fellatio judicially as a "crime against nature," and it
was the first ever to be presented with a case questioning whether cunnilingus
was a "crime against nature." In 1913, in People v. Smith,20
the Court took the double-standard route by saying "no" in a 6-1
decision. In a very brief opinion, Chief Justice Frank Dunn stated that,
without a male sexual organ, there could be no sodomy.21
In a more lengthy dissent, Justice Orrin Carter concluded that, because the
Illinois statute had been interpreted broadly in Honselman, an act of
cunnilingus would qualify as a violation of the law.22
A revision to the sodomy law in 191923
established a one-year minimum prison term, while leaving the ten-year maximum
unchanged.24
A 1931 case, People v. Fitzgibbons,25
also was unsuccessful in overturning a conviction for fellatio despite alibi
testimony on the defendant’s behalf.
A 1938 medical journal article26 set the
tone for a crackdown on sexual offenders in Illinois. Filled with both racial
and sexual prejudice, it was an unrealistic plea for rigid Victorian sexual
morality. How much influence this article had is unclear, but later in the
year, Illinois became only the second state in the nation to enact a
psychopathic offender law27 enacted due to
"atrocious sex crimes in Chicago."28
Anyone found to be suffering from an undefined "mental disorder" and
who had "criminal propensities to the commission of sex crimes" was
considered a sexual psychopath.29
This law was amended in 194130 to move the
jurisdiction for implementing the law from the Department of Public Welfare to
the Department of Public Safety, showing that the state considered the law to
be more punitive than therapeutic in nature.
The constitutionality of the psychopathic offender law was upheld by the
Illinois Supreme Court in the 1943 case of People v. Sims.31
In 1946, in People v. Kraus,32 the
sodomy conviction of a man was upheld. He apparently had a long-standing
relationship with a teenager and the two were caught in the act in the back
seat of the defendant’s car. Although the teenager claimed that the man had
been violent with him, he was unable to explain why he continued the
relationship.
II. Sterilization
In 1911, a bill was introduced into the Illinois legislature to authorize
sterilization of "habitual criminals," among others. The proposal
was criticized in a law review as being "based upon unproved
theories[.]"33 It never became law.34
Despite that fact, in 1916, a judge in Chicago, Marcus Kavanaugh, offered a
prisoner who was "a degenerate and a pervert" the choice between
prison and sterilization. The prisoner chose sterilization, and he was
released after the operation.35
Period Summary: Illinois judicially recognized fellatio as a
violation of the state’s sodomy law only because of an obscure civil
rights disability law that mentioned sodomy or "other" crime
against nature. This began a precedent that led to most states recognizing
fellatio as a crime via judicial interpretation. Nevertheless, the
Illinois Supreme Court followed a double-standard route when it ruled that
cunnilingus was not an "other" crime against nature. The
Illinois legislature never changed the law as a result, something that
also was common with other states. Illinois was the second state to enact
a psychopathic offender law and it was used with great frequency,
including against consenting Gay men. Sterilization bills were introduced,
but never became law. Even so, some courts provided sterilization of sex
criminals without statutory authority.
The Kinsey Period, 1948-1986
A study of the psychopathic offender law36
published in 1948 detailed some cases prosecuted under it. One was a music
teacher and church organist who had a long-standing habit of engaging in
frottage with male students.37 Although
frottage did not, on its face, violate the sodomy law, it may have been
prosecuted as such under the language "other crime against
nature." Another was a 67-year-old man who had a long-standing
relationship with a nine-year-old boy who became enraged when the man
"transferred his affections to other children" and "informed on
him."38
In the case of People v. Redlich,39
from 1949, the Illinois Supreme Court acted as did courts in other
jurisdictions by pouring water on overly heated use of the psychopathic
offender law. Herman Redlich had been arrested on a sodomy charge and refused
to be interviewed by a psychiatrist under the psychopathic offender law on the
ground that answers given by him could be used against him in court. Redlich
then was found in contempt and jailed until he complied with the ruling. He
refused to back down, even though jailed, and was tried on the sodomy charge
and convicted. He then sued for removal of the contempt citation.40
The unanimous decision of the Court was that Redlich’s trial automatically
precluded any psychopathy proceedings, since they were preliminary to a
trial. Since the proceedings never were held, the Court found that he had been
subjected to contempt for a situation that didn’t exist and directed the
trial court to remove the citation.41
In 1950, the Illinois Supreme Court, dealing with the case of People v.
Whitham,42 rejected the contention of the
heterosexual defendant that sodomy could be accomplished only between persons
of the same sex.43
The Illinois Supreme Court gave a broad reading to the powers of the state
over private morality in the 1950 case of People ex rel. Elliott v.
Juergens.44 Juergens was a county judge who
refused to order the psychopathy investigation of a number of prisoners
confined for rape, incest, indecent liberties, and the "crime against
nature," because he believed the law was unconstitutional. Justice Walter
Gunn, speaking for a unanimous court, reaffirmed the Sims case that the
psychopathic offender law was constitutional and went farther. He stated that
no citation of authority was necessary to uphold such a law because
the State has not only the power, but the duty, to protect society from
persons who are sex criminals, and who have not recovered from their
criminal propensities while serving their sentence in the penitentiary.
Not only public safety but public morals are involved, which are among the
well-settled grounds upon which the police power may be exercised.45
The psychopathic offender law was amended in 1951.46
This law, signed by Governor Adlai Stevenson, authorized examination of any
prisoner "at suitable intervals" to see if he or she "has
become a criminal sexual psychopath."47
The law also provided that any prisoner convicted of certain crimes, including
the crime against nature, be examined upon release from prison to see
if the person was a "criminal sexual psychopath."48
An analysis of the operation of the psychopathic offender law49
revealed that, in the first 15 years of the law’s operation, 10 of the 62
commitments under it (16%) were for the "crime against nature." All
ten of these commitments were allegedly of "violent offenders."
However, during the 1950s, the act increasingly was used to commit
"non-violent" offenders against the "crime against nature"
law.50
Another proceeding under the psychopathic offender law was the subject of
the 1951 case of People v. Ross,51
decided by an appellate court. Richard Ross was prosecuted for apparently
consensual sodomy with various males over a long period of time. He was 30
years of age at the time of his trial, but had
commenced perverted sexual activities at the age of seven and persisted
therein to the time of his indictment.52
Witnesses at his trial included other men who had been sexual with him. He
had a previous sodomy conviction and had engaged in "homosexual
activities" while in prison on that charge.53
Because of his long history of consensual sodomy, "this history
shows that he is a criminal psychopathic person."54
In the 1953 case of People v. Sampson,55
the Illinois Supreme Court unanimously upheld the conviction of a man for
committing fellatio on a teenage employee, who boarded with him, after showing
him pictures "at bedtime to arouse his sex passion."56
The young man testified in the trial that he had permitted the sex 1-2 times
per week for six months before telling his grandparents and parents.57
On the same day, the Illinois Supreme Court also decided the case of People
v. Lackaye.58 A conviction for
"keeping a house of ill fame" was sustained over the contention of
the defendant that
a bath house where men congregate for homosexual pleasures, one with
the other, is not within the purview of the above statutory prohibition[.]59
In 1955, in People v. Jones,60 the
Illinois Supreme Court unanimously upheld the sodomy conviction of a man for
consensual activity with two Gay teenagers. Lloyd Jones and John Chism parked
their car with teens Lewis Quirk and Floyd Summers and
performed homosexually. That these males displayed an abnormal
attraction for each other in violation of...the Criminal Code...there is
no controversy.61
This reads as though it were criminal in Illinois merely to be attracted to
someone. A psychiatrist, after much Freudian talk, testified that Jones was
not sane, but was not insane, and had no ability to control his desires. Chief
Justice George Bristow, writing for the Court, said that the psychiatrist’s
testimony
loses its probative value when we consider the viewpoint of the witness
that the defendant has committed no crime by his act of perversion, and
his contradictory statements that the defendant is not sane, but is not
insane medically[.]62
After saying that Jones’ conviction was not "based on passion or
prejudice," Bristow displayed some of his own. He conceded that it might
very well be that defendant’s abnormal conduct is the product of a
diseased mind, and that there should be some special treatment of this
species of criminality. This, however, is a legislative problem. The State
has pursued the only course available to remove from society the
demoralizing influence of characters such as defendant.63
A victory in a sodomy case was covered up by the liberating court,
evidently not wanting anyone to get any ideas. In 1956, in People v.
Snively et al.,64 an appellate court
overturned the convictions of Carl Snively and Walter Adams for engaging in
fellatio, because they had not entered pleas before being tried. The
three-word opinion of the court was: "(Publish abstract only.)"65
The conviction of an optometrist for sodomy was sustained in 1957 in People
v. Stevens.66 The Court unanimously upheld
the fellatio conviction of the doctor, committed on a patient in his office,
despite conflicting witness testimony. The complainant was "corroborated
to a certain extent,"67 that is, by some
of the witnesses, but was contradicted by others. Nonetheless, the Court
affirmed the conviction.
In 1958, the Attorney General issued an opinion68
that the state had no responsibility for paying costs of hearings for
prisoners who initiated proceedings to have themselves declared recovered from
their psychopathy. In effect, the prisoners could be required to stay in the
mental health system for as long as the state chose to keep them there.
The last reported sodomy case in Illinois, in 1959, People v. Funches,69
was an unusual one to end the series of case law. Funches had been convicted
of the robbery and sexual assault of another man at knife point. When taken
into custody and questioned, he said that he was Gay, but claimed that he had
taken the man’s shoes as payment for a consensual act of fellatio. In fact,
the victim claimed that he had been assaulted anally.70
Noting that either act was equally criminal, the Court held that "[m]erely
the revolting method of accomplishment is in dispute," and that could be
settled by the verdict.71 Several procedural
errors also were rejected by the Court in upholding the conviction.72
In 1961, Illinois became the first state in the nation to adopt the
recommendation of the American Law Institute and pass a comprehensive criminal
code revision73 that repealed the law against
sodomy.74 The code also abrogated common-law
crimes75 and established an age of consent of
18.76 However, the code also made it a crime to
commit a "lewd fondling or caress of the body of another person of the
same sex" in a public place.77
The committee that wrote the new code defended this measure by saying that
fondling between persons of the same sex
was felt to be of such character as to be disgusting and offensive to
the vast majority of the general public. The considerations which led to
an abandonment of proscribing various forms of sexual conduct done by
consenting adults in private did not warrant a disconcern for all types of
open display of such erotic interests.78
The Committee didn’t consider it necessary "to make criminal the ‘petting’
activities of persons of the opposite sex."79
The discriminatory nature of this law lasted only two years. In 1963, the
legislature passed a new law80 that changed the
words "the same sex" to "either sex."81
An amendment to the psychopathic offender law in 196382
established procedures for the release of adjudged psychopaths for whom it was
unclear if they had recovered fully from their psychopathy.
Illinois voters made it more difficult ever to reinstate a sodomy law when
they adopted a constitutional amendment in 197083
granting people the right "to be secure in their persons, houses, papers
and other possessions against unreasonable searches and seizures, invasions of
privacy or interceptions of communications[.]"84
In the 1973 case of People v. Baus,85
an Illinois appellate court unanimously upheld the public indecency conviction
of a man for performing oral sex with another man in the bushes of a public
park. Even though Baus proved that no one could see into the bushes from the
jogging paths, the trial court and appellate court found the secluded bushes
to be a "public place."86
In the 1974 case of People v. Neumann,87
a conviction for public indecency was overturned by an appellate court.
Neumann had been caught in a public restroom masturbating, and he argued that
this did not constitute a violation of the law since he was touching himself.
The court agreed with him, reversed the conviction, and refused to remand for
a new trial.88
In 1976, in Wes Ward Enterprises Ltd. et al. v. Andrews et al.,89
an appellate court extended the obscenity laws to cover massages. The
masturbatory touching of the genital area of a customer by a masseur or
masseuse constituted "obscenity."90
The court rejected the contention that an ordinance banning such acts
conflicted with the state’s criminal code that had legalized
"homosexual acts."91
In 1984, the "lewd fondling or caress" law was repealed.92
Period Summary: The psychopathic offender law continued to be
used with great frequency against those convicted of sodomy, including
consensual acts. An opinion of the Attorney General stated that there was
no obligation on the part of the state to pay for proceedings instigated
by a prison to determine that the prison has recovered from a psychopathy.
This, in effect, permitted the state to warehouse sex criminals, since the
presumably large majority of those held in custody would not be able to
afford such costs. The courts were almost unanimous in sustaining sodomy
convictions, with the exception of one case in which the court refused to
publish the opinion freeing the convicted sodomite. Nevertheless, Illinois
in 1961 became the first state to adopt the recommendation of the American
Law Institute and repeal its consensual sodomy law. Illinois voters
adopted a new constitution in 1970 that included a specific right to
privacy.
The Post-Hardwick Period, 1986-Present
In 1997, an Illinois appellate court sustained the disorderly conduct
conviction of a man in People v. Allen.93
The conviction was based on "crude sexual overtures" to two
16-year-old males by an adult male. The conviction was sustained based on the
defendant’s "vague threat" to tell others known by the teens that
they were Gay.
Period Summary: The solitary post-Hardwick case in Illinois
concerns an issue similar to that fought by Gay activists in the 1960s—alleged
"public" solicitation that offended people.
Footnotes
1 Laws of the territory of the United
States north-west of the Ohio, adopted and made by the governour and
judges, in their legislative capacity, at a session begun on Friday, the
XXIX day of May, one thousand eleven [sic] hundred and ninety-five, and
ending on Tuesday the twenty-fifth day of August following: with an
appendix of resolutions and the ordinance for the government of the
territory, (Cincinnati:W. Maxwell, 1796), enacted July 14, 1795.
2 Laws of the Illinois Territory
1809-1811, (Springfield:Illinois State Journal Co., 1906),
page 1, enacted Feb. 2, 1809.
3 Illinois Historical Collections,
Vol. XXI, Laws of Indiana Territory 1801-1809, (Springfield:Illinois
State Historical Library, 1930), page 247, §23.
4 Laws of Illinois 1819-1821,
page 212, enacted Mar. 23, 1819.
5 Id. at 220, §20.
6 Laws of Illinois 1819, page 1,
enacted Feb. 4, 1819.
7 Revised Statutes of Illinois
1844-45, page 151, enacted Sep. 10, 1845.
8 Id. at 158, §50.
9 Id. §49.
10 Revised Statutes of Illinois
1874, Criminal Code, page 359, ch. 38, §48, enacted Mar. 27, 1874.
11 48 N.E. 304, decided Nov. 1, 1897.
12 Id. at 305.
13 Id.
14 Id.
15 Criminal Code of 1874, §279.
16 Honselman, at 305.
Although this was the first reported sodomy case in Illinois, it was far from
the first sodomy prosecution in the state. Research by Mr. Dale Sheldon
uncovered 14 "sodomy" or "crime against nature" cases
prosecuted between 1876 and 1931 just in Logan County. This indicates that
reported sodomy cases in Illinois are only a tiny fraction of the total sodomy
prosecutions.
17 61 N.E. 425, decided Oct. 24, 1901.
18 Id. at 426.
19 Id.
20 101 N.E. 957, decided Apr. 19, 1913.
21 Id. at 958.
22 Id. at 960.
23 Laws of Illinois 1919, page
426, enacted June 28, 1919.
24 Id. at 428, §47.
25 179 N.E. 106, decided Dec. 17, 1931.
26 John Kercher, "Sex
Crimes," Illinois Medical Journal, 73:171-172 (Feb. 1938).
27 Laws of Illinois 1938, page
28, "Criminal Code," enacted July 6, 1938.
28 William H. Haines, Harry R. Hoffman,
"Commitments Under the Criminal Sexual Psychopath Law in the
Criminal Court of Cook County, Illinois," American Journal of
Psychiatry, 105:420-425, at 422.
29 Id. §1.
30 Laws of Illinois 1941, Vol.
I, page 551, "Commitment and Detention to Department of Public
Safety," enacted June 30, 1941.
31 47 N.E.2d 703, decided Mar. 18,
1943.
32 69 N.E.2d 885, decided Nov. 20,
1946.
33 5 Ill.L.Rev. 578 (1911). The
sterilization bill was House Bill 49.
34 This bill seemed to have been
produced by more thought than other such bills. A long explanation
accompanying the bill stressed that the sterilization procedures
involved, vasectomy and oophorectomy, did not endanger either the health
or sexual pleasure of either sex. "Sterilization of Man and
Woman," at page 1.
35 Harry H. Laughlin, The Legal
Status of Eugenical Sterilization, (Chicago:Psychopathic Laboratory
of the Municipal Court of Chicago, 1929), page 56.
36 William H. Haines, Harry R. Hoffman,
"Commitments Under the Criminal Sexual Psychopath Law in the
Criminal Court of Cook County, Illinois," American Journal of
Psychiatry, 105:420-425.
37 Id. at 424-425.
38 Id. at 425.
39 83 N.E.2d 736, decided Jan. 19,
1949.
40 Id. at 738.
41 Id. at 741. A brief report on
this case, published before the court decision, is found in William H.
Haines, Harry R. Hoffman, "Commitments Under the Criminal Sexual
Psychopath Law in the Criminal Court of Cook County, Illinois," American
Journal of Psychiatry, 105:420-425, at 425. This report states that
Redlich was a dentist.
42 94 N.E.2d 506, decided Sep. 21,
1950.
43 Id. at 507.
44 95 N.E.2d 602, decided Nov. 27,
1950.
45 Id. at 605.
46 Laws of Illinois 1951, page
1960, "Penitentiaries," enacted Aug. 2, 1951.
47 Id. §1.
48 Id. at 1961.
49 Lawrence T. Burick, "An
Analysis of the Illinois Sexually Dangerous Persons Act," Journal
of Criminal Law and Criminology, 59:254 (1968).
50 Id. at 255, n.15.
51 101 N.E.2d 112, decided Sep. 27,
1951.
52 Id. at 114.
53 Id. at 114-115.
54 Id. at 115.
55 115 N.E.2d 627, decided Nov. 18,
1953.
56 Id. at 628.
57 Id.
58 116 N.E.2d 359, decided Nov. 18,
1953.
59 Id. at 360.
60 128 N.E.2d 739, decided Apr. 19,
1955. Rehearing denied Sep. 19, 1955.
61 Id. at 740.
62 Id. at 741.
63 Id.
64 138 N.E.2d 112, decided Oct. 17,
1956.
65 Id.
66 141 N.E.2d 33, decided Mar. 20,
1957.
67 Id. at 35.
68 Illinois Attorney General’s
Report and Opinions 1958, page 174, No. 462, issued May 5,
1958.
69 162 N.E.2d 393, decided Nov. 18,
1959.
70 Id. at 394.
71 Id. at 395.
72 Id.
73 Laws of Illinois 1961, page
1983, enacted July 28, 1961, effective Jan. 1, 1962.
74 Id. at 2006, §11.2. This
section created a definition of "deviate sexual conduct" but
made it criminal only for non-consensual, public, or underage activity.
75 Id. at 1986, §1.3.
76 See Article 11 generally.
77 Id. at 2008, §11.9.
78 See note following §38-11-9 of the
Illinois Criminal Code of 1961, page 302.
79 Id.
80 Laws of Illinois 1963, Vol.
2, page 2225, enacted Aug. 2, 1963.
81 Id. at 2226, §11-9 (a) (4).
82 Laws of Illinois 1963, Vol.
2, page 2983, "Criminal Code," enacted Aug. 16, 1963.
83 Illinois Constitution, Article I,
§6, adopted Dec. 15, 1970.
84 Id.
85 305 N.E.2d 592, decided Dec. 3,
1973.
86 Id. at 593.
87 314 N.E.2d 225, decided June 7,
1974.
88 Id. at 227.
89 355 N.E.2d 131, decided Sep. 22,
1976.
90 Id. at 139.
91 Id. at 140.
92 Laws of Illinois 1984, page
7251, P.A. 83-1067, enacted Jan. 5, 1984, effective July 1, 1984.
93 680 N.E.2d 795, decided June 2,
1997.
