Chicago Whispers: A History of LGBT Chicago before Stonewall

22. The Sodomy Laws

248 22 The Sodomy Laws In 1809 the punishment for sodomy in Illinois was up to five years in prison, a hundred­ to five­hundred­dollar fine, and a flogging of a hundred to five hundred lashes. The laws changed over the years; Honselman v. People in 1897 decided fellatio was a crime against nature, while Smith v. People in 1913 decided cunnilingus wasn’t. And why did Illinois forget to recriminalize homosexuality in 1961? When the Pilgrims founded Plymouth Colony in 1620 the devout religionists brought with them the harsh penalty for sodomy that existed under British law, which was death. In 1636, under the leadership of William Bradford, the Plymouth Colony adopted a draconian legal system, with five crimes meriting the death penalty: murder, arson, sodomy, adultery, and selling one’s soul to the devil. On February 3, 1809, the U.S. Congress approved an act separating Illinois from the Indiana territory, and the penalty for sodomy changed from death to up to five years in prison, a hundred- to five-hundred-dollar fine, and a flogging of a hundred to five hundred lashes. In 1845 the flogging and fines were dropped, but the jail sentence increased to one year to life, and in 1874 a new code was adopted that capped the maximum jail sentence at ten years. The state of Illinois has a history of legal firsts with its sodomy laws: in 1827 it was the first state to bar a convicted sodomite from voting or sitting on a jury; in 1897 it was the first state to convict an individual under the The Sodomy Laws 249 sodomy law for an act of fellatio; in 1913 the Illinois Supreme Court was the first to rule that cunnilingus was not an act of sodomy; and in 1961 Illinois was the first state to decriminalize homosexual acts between consenting adults. In the 1890s a spate of arrests for crimes against nature took place in Logan County, Illinois, but it wasn’t until the case of Honselman v. People in 1897 that an arrestee appealed his conviction. Police officer Charles Honselman was tried for performing oral sex on Lloyd Kesler, who was sixteen years old at the time of the trial, though the incident had happened one and a half years earlier. A jury found Honselman guilty and sentenced him to a jail for committing “a crime against nature.” Prior to the trial a motion to quash the count was overruled. The defense argued the charge against Honselman was unclear. The problem lay in the vagueness of the law: though section 47 of the criminal code read “the infamous crime against nature, either with man or beast,” the statute gave no definition of what the crime consisted of. The defense argued that as Honselman “made use of his mouth” no act of sodomy had taken place, assuming the Illinois statute covered sodomy, or buggery, as denominated in the English statute. The judges disagreed. Justice James Cartwright wrote: While the “crime against nature” and “sodomy” have often been used as synonymous terms, paragraph 279 of our Criminal Code, defining infamous crimes, plainly shows that the legislature included in the crime against nature other forms of the offense than sodomy or buggery. It is there enacted: “Every person convicted of the crime of sodomy or other crime against nature shall be deemed infamous.” 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 copulation that can be conceived. It is within the statute. Explaining the vagueness of the law, Cartwright wrote: The statute gives no definition of the crime, which the law, with due regard to the sentiments of decent humanity, has always treated as not fit to be named. It was never the practice to describe the particular manner or the details of the commission of the act, but the offense was treated in the indictment as the abominable The Sodomy Laws 250 crime not fit to be named by Christians. 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. A statement of the offense in the language...