Last edited: August 10, 2004


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.


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