The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States

In September 1940 police arrested and charged thirty-five-year-old Bert Chapman with committing an “act of gross indecency” with John Bates, a consenting adult, at his home in Livingston County, Michigan. Before his trial, the prosecuting attorney filed a petition seeking to have Chapman certified as a criminal sexual psychopath and committed indefinitely to a psychiatric hospital. As required by the statute, the court appointed two psychiatrists, who examined Chapman and diagnosed him with “psychosexual deviation, homosexual (sexual psychopath).” The doctors warned that Chapman “must be considered a distinct sexual menace and a source of serious concern in a free community” not only because of his “homosexual practices” but also because “his psychosexual deviation is very likely to assume a much more ominous manifestation, that of pedophila [sic] (the use of children as sexual objects).” Despite their acknowledgment that Chapman had never exhibited any sexual interest in children, the psychiatrists found that the “possibility [of pedophilia] must be gravely considered.” After a brief hearing, the court accepted the psychiatrists’ findings and ruled that Chapman was a “criminal sexual psychopathic person.” The court ordered him confined to a psychiatric institution until he “shall have fully and permanently recovered from [his] psychopathy.”¹

In committing a man to a psychiatric hospital, possibly for the rest of his life, for engaging in a consensual, entirely private sexual act, the People v. Chapman decision illustrates the deeply antihomosexual undercurrent of sexual psychopath laws. Sexual psychopath statutes, under which courts committed individuals charged with or convicted of certain crimes, typically sex offenses, to psychiatric institutions, proliferated in the United States between the late 1930s and early 1960s.² Twenty-nine states and the District of Columbia enacted versions of these statutes in response to a sex-crime panic that swept the nation after a wave of publicity about violent sex crimes committed against children.³ Large urban newspapers and national magazines such as Time, Newsweek, Coronet, and Collier’s repeatedly covered the “sex-crime menace”; in 1937 alone, the New York Times published 143 articles on sex crimes.⁴ While scholars have argued that sex crimes did not actually increase during this period, news media outlets nevertheless regularly reported on violent sex crimes, leading citizens’ groups, law enforcement agencies, and the media to argue that the state had to act to prevent innocent victims from attack.⁵ At a time when both the medical profession and the public often equated homosexuality with pedophilia, it is not surprising that the sexual psychopath laws contained clear homophobic undertones.⁶ Indeed, while the statutes varied widely in terms of the crimes that triggered the laws’ application and in their definitions of sexual psychopathy, they were almost always applied to men convicted of consensual sodomy and were used to commit homosexual men to institutions.⁷ These statutes, which treated offenders as patients instead of criminals, were originally considered progressive developments that provided a more humane approach to treating sexual deviancy.⁸

The vast majority of states enacted their sexual psychopath statutes between 1939 and 1951.⁹ However, in 1955—only four years after the rush to enact sexual psychopath laws ended—the American Law Institute (ALI) voted to exclude consensual sodomy from its Model Penal Code (MPC), indicating that consensual sodomy was not a criminal matter. Therefore, in a very short period, a group of influential legal thinkers had moved consensual homosexual activity from a sign of possible pathology to a legally benign, albeit still immoral, practice. The MPC, a model criminal statute aimed at stimulating penal law reform throughout the United States, became highly influential in legislative efforts to revise state criminal codes, leading twenty-two states to repeal their sodomy statutes by 1978.¹⁰ Although states defined sodomy differently, the term typically referred to any sexual penetration other than penile-vaginal intercourse, which is how I will employ the word in this article.¹¹

This article explains how American law evolved from the widespread implementation of sexual psychopath statutes to the decriminalization of sodomy, arguing that this shift emerged...