The fight for queer rights has had a long trajectory in the United States, encompassing a broad cross-section of fundamental freedoms. From marriage to adoption, from military service to gender recognition, queer people have had to fight battle after battle to achieve their rights. But one of the very first battles fought was the right for consenting adults to have sex in the privacy of their own homes.

The Laws

New York State has had sodomy statutes and crimes against nature on the books since the colonial era. In 1923, when revising the disorderly-conduct statute, however, legislators ushered in a new era. In the past, the statutes and crimes against nature laws criminalized a large swathe of sexual practices not undertaken for procreation, without specifically targeting male homosexual conduct. After the revision, a person who was accused of

frequent[ing] or loiter[ing] about any public space soliciting men for the purpose of committing a crime against nature or other lewdness

was now guilty, by definition, of disorderly conduct. In practice, enforcement of Penal Law 722, section 8 (“degenerate disorderly conduct”) was targeted to eliminate queerness in the public sphere.

California called this “lewd vagrancy”, and passed the law criminalizing it in 1872. In 1903, California proceeded to criminalize acts outraging public decency, following up in 1915 criminalizing oral sex. These laws spread across the country after World War II, when the country turned its focus to preserving the “American way of life”–a way of life that had no room in it for queer people.

By 1960, 21 states had removed the requirement that solicitation happen in a public place from their requirements, making it a crime for same-sex couples to not only have consensual sex, but to even propose it, at any time or place.

The Penalties

Criminalization of queerness was not as simple as jailing queer people. In 1909, F. W. Hatch, the secretary of the California State Commission in Lunacy, spearheaded a sterilization bill for California. It granted the medical superintendents of asylums and prisons the authority to “asexualize” (a euphemism for “castrate”) a patient or inmate if they believed it would improve the patient or inmate’s “physical, mental, or moral condition”. That last part should be a bit worrisome. In 1913 and 1917, the law was expanded to shield physicians from legal retaliation and to make it clear that the rationale was eugenic, not penal, in nature. Hundreds were involuntarily sterilized under the law.

Doctor Arthur Miller authored the Sexual Psychopath Law for the District of Columbia in June of 1948. The Miller Act, also known as Public Law 615, set up a provision that allowed a prosecutor to file a statement with the clerk that the believed the defendant to be a “sexual psychopath”. The law defined a sexual psychopath to be

a person, not insane, who by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his sexual impulses as to be dangerous to other persons because he is likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of his desire.

but in practice meant

a gay person

and mandated that two psychiatrists be brought in to adjudicate whether the person was, in fact, a sexual psychopath. The psychiatrists would then present their findings at a hearing. There would be no jury at a hearing, unless the accused demanded one within 15 days of the reports being filed. The court would then decide if the person was a sexual psychopath or not.

If the accused was ruled a sexual psychopath, or a queerwolf as I’m going to refer to them for the rest of my life, they would be committed to Saint Elizabeth’s Hospital until the superintendent of the hospital believed they were no longer cured of their sexual psychopathy. No criminal charges were required to commit them indefinitely.

During their stay in the hospital, “patients” would be treated with the cutting edge medical breakthroughs of the day that were believed to help cure their sexual deviancy. This included individual and group psychotherapy, which don’t sound too awful, all things considered. But it also included insulin and electroshock therapy, chemotherapy, and in some instances, lobotomy.

Once discharged from the hospital, then their trial would begin, and a criminal proceeding brought against them.

The Miller Act was not unique, nor was it even the first. Between 1946 and 1957, 29 states enacted laws similar to the Miller Act. Only 3 restricted their laws to sex crimes involving minors.

The Enforcement

Obviously, with consenting adults engaging in sex with each other, the State has to be the complainant in the cases prosecuting queer people. Which meant they also had to find out about people having sex in the privacy of their own homes. There were a variety of methods to achieve this: staking out places where queer people were known to gather; using decoy or sting operations, by sending an officer into a location queer people were known to cruise, to try and attract sexual solicitation; or raiding places queer people were known to congregate.

To accommodate these tactics, police departments started creating vice or morals squads. These squads were exclusively devoted to sex and drug crimes, and their productivity was measured by the number of arrests. After 1946, they focused mainly on arresting queer people. Decoys would make advances on queer people, then arrest them. Or police would follow suspected queer people, and peek through door cracks to catch them having sex. But frequently, same-sex hugging or kissing in a public place was enough to warrant an arrest. Infamously, the Pepper Hill Club in Baltimore led to 162 arrests for disorderly conduct for hugging and kissing. Sexual orientation wasn’t the only target, however–gender expression was also policed. A 1957 raid on Jimmie’s Tavern in Tampa yielded 12 arrests of women for their “mannish” dress, and a 1962 raid of the Yuga drag ball in Jefferson County, Louisiana led to 96 arrests. The number of queer people arrested between 1946 and 1961 was unprecedented.

Notes

A lot of the information in this post came from

• Dishonorable Passions: Sodomy Laws in America, 1861-2003, by William N. Eskridge
• The Gay Revolution: The Story of the Struggle, by Lillian Faderman
• STERILIZED in the Name of Public Health: Race, Immigration, and Reproductive Control in Modern California, by Dr. Alexandra Minna Stern, published in the American Journal of Public Health
• Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, by George Chauncey

Each of these works goes into more detail than I did here, so if you’re interested in the history of criminalizing queer people having sex, I advise checking them out.