Shifting the scene of the crime: Sodomy and the American history of sexual violence

Journal of the History of Sexuality

Volumn 19, Issue 2, 2010, Pages 223-242

  Robertson, Stephen ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ECONOMICS; EDUCATION; ETHNOLOGY; HISTORY; HOMOSEXUALITY; JURISPRUDENCE; LEGAL ASPECT; PHYSIOLOGY; PSYCHOLOGICAL ASPECT; RAPE; SEXUAL BEHAVIOR; SEXUALITY; UNITED STATES; VICTIM; VIOLENCE;

CRIME VICTIMS; HISTORY, 19TH CENTURY; HISTORY, 20TH CENTURY; HISTORY, 21ST CENTURY; HOMOSEXUALITY; JUDICIAL ROLE; JURISPRUDENCE; RAPE; SEXUAL BEHAVIOR; SEXUALITY; UNITED STATES; VIOLENCE;

EID: 77952896923     PISSN: 10434070     EISSN: 15353605     Source Type: Journal    
DOI: 10.1353/sex.0.0093     Document Type: Article

References (115)

1. Lawrence v. Texas, 539 U.S. 538 (2003), especially Opinion of the Court, 6-10, available online at http://www.supremecourtus.gov/opinions/02pdf/02-102. pdf;
2. "Brief of Professors of History George Chauncey, Nancy F. Cott, John D'Emilio, Estelle B. Freedman, Thomas C. Holt, John Howard, Lynn Hunt, Mark D. Jordan, Elizabeth Lapovsky Kennedy, and Linda P. Kerber as Amici Curiae in Support of Petitioners," available online at http://supreme.lp.findlaw.com/ supreme-court/briefs/02-102/02-102.mer.ami.hist.pdf.
3. Marc Spindelman has published a law review article focused on what the decisions and the arguments made to support it mean for understandings of sexual violence within the gay community ("Surviving Lawrence v. Texas," Michigan Law Review 102 [2004]: 1615-65).
4. Lawrence v. Texas, Opinion of the Court, 8;
5. William Eskridge, "Brief of the Cato Institute as Amicus Curiae in Support of Petitioners," 9-12, available online at http://supreme.lp. findlaw.com/supreme-court/briefs/02-102/02-102.mer.ami.ci.pdf.
6. Lawrence v. Texas, Scalia, J., dissenting, 11-14.
7. Susan Brownmiller, Against Our Will: Men, Women and Rape (Harmondsworth, U.K.: Penguin, 1975), 256-282
8. Florence Rush, whose research Brownmiller drew upon for her discussion of child rape, did subsequently publish a book on children that brought boys somewhat more into focus (The Best Kept Secret: Sexual Abuse of Children [New York: McGraw Hill, 1980]).
9. Barbara Lindemann, "'To Ravish and Carnally Know': Rape in Eighteenth-Century Massachusetts," Signs 10, no.1 (1984): 63-82;
10. Marybeth Hamilton Arnold, "'The Life of a Citizen in the Hands of a Woman': Sexual Assault in New York City, 1790 to 1820," in Passion and Power: Sexuality in History, ed. Kathy Peiss and Christina Simmons (Philadelphia: Temple University Press, 1989), 35-56.
11. Karen Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880-1929 (Chicago: University of Chicago Press, 1993);
12. Cornelia Dayton, Women before the Bar: Gender, Law, and Society in Connecticut, 1639-1789 (Chapel Hill: University of North Carolina Press, 1955);
13. Mary Odem, Delinquent Daughters: Policing and Protecting Adolescent Female Sexuality in the United States, 1885 - 1920 (Chapel Hill: University of North Carolina Press, 1995);
14. and Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (New York: Vintage Books, 1996).
15. Mary Beth Norton does consider rape and sodomy together on the basis that New Englanders were obsessed with defining both, but she sees the link between them that "both acts involved sex that was simultaneously nonmarital and nonprocreative" (Founding Mothers and Fathers, 351). However, she overlooks that the two crimes were also linked by coercion, although her discussion of colonial sodomy statutes is the only one that mentions the sections that referred specifically to coercion.
16. Dubinsky, Improper Advances, 57.
17. Lawrence v. Texas, 02-102, Oral Argument, 16, available online at http://www.supremecourtus.gov/oral-arguments/argument-transcripts/02-102.pdf.
18. Diane Somerville, Rape and Race in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2004);
19. Sharon Block, Rape and Sexual Power in Early America (Chapel Hill: University of North Carolina Press, 2006).
20. Block, Rape and Sexual Power, 2-3.
21. Block, Rape and Sexual Power, Ibid., 12.
22. Block, Rape and Sexual Power, Ibid., 239.
23. Robert Oaks's pioneering study of sodomy in the colonial period does not mention the Sension case, but his analysis of sodomy is similarly concerned with attitudes toward homosexual behavior ("'Things Fearful to Name': Sodomy and Buggery in Seventeenth-Century New England," Journal of Social History 12, no.2 [1978]: 268-81).
24. B. R. Burg, Sodomy and the Perception of Evil: English Sea Rovers in the Seventeenth-Century Caribbean (New York: New York University Press, 1983), 37-38.
25. Richard Godbeer, "'The Cry of Sodom': Discourse, Intercourse, and Desire in Colonial New England," William and Mary Quarterly 52, no.2 (1995): 276-277
26. Thomas Foster, Sex and the Eighteenth-Century Man: Massachusetts and the History of Sexuality in America (Boston: Beacon, 2006), 160.
27. George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (New York: Basic Books, 1994), 141.
28. George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940, Ibid., 185.
29. George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, Ibid., 88-95, esp. 88.
30. Steven Maynard, "'Horrible Temptations': Sex, Men, and Working-Class Male Youth in Urban Ontario, 1890-1935," Canadian Historical Review 78, no.2 (1997): 191-235;
31. Peter Boag, Same-Sex Affairs: Constructing and Controlling Homosexuality in the Pacific Northwest (Berkeley: University of California Press, 2003).
32. Boag, Same-Sex Affairs, 9.
33. Nayan Shah, "Between 'Oriental Depravity' and 'Natural Degenerates': Spatial Borderlands and the Making of Ordinary Americans," American Quarterly 57, no.3 (2005): 703-25;
34. Stephen Robertson, Crimes against Children: Sexual Violence and Legal Culture in New York City, 1880-1960 (Chapel Hill: University of North Carolina Press, 2005).
35. New York adopted its law in 1665, New Jersey in 1668, Plymouth in 1671, Connecticut in 1672, New Hampshire in 1680, and Pennsylvania, in this form, in 1706.
36. See Jonathan Katz, Gay/Lesbian Almanac: A New Documentary (New York: Harper and Row, 1983), 92, 105-7, 118-19, 125.
37. Norton, Founding Mothers and Fathers, 349-50;
38. Katz, Gay/Lesbian Almanac, 102.
39. William Eskridge, Gaylaw: Challenging the Apartheid of the Closet (Cambridge, Mass.: Harvard University Press, 1999), 162;
40. Robertson, Crimes against Children, 63-64.
41. Thanks to the anonymous reader for the Journal of the History of Sexuality who suggested that I consult justice of the peace manuals. I examined all the American editions published in the eighteenth century, which are available in the digital edition of Early American Imprints, Series I: Evans, 1639 - 1800, and the English texts they mirrored, available in Eighteenth Century Collections Online, available online at http://www.gale.cengage.com/ DigitalCollections/products/ecco/index.htm (accessed July 2008).
42. For a broad account of these manuals see John A. Conley, "Doing It by the Book: Justice of the Peace Manuals and English Law in Eighteenth Century America," Journal of Legal History 6, no.3 (1985): 257-298
43. For an analysis of their treatment of rape see Block, Rape and Sexual Power, 126-152
44. John Grimke, The South-Carolina Justice of Peace, Containing All the Duties, Powers and Authorities of That Office, as Regulated by the Laws Now of Force in This State, and Adapted to the Parish and County Magistrate, 2 vols. (Philadelphia: R. Aitken, 1788), 1:73-74;
45. Francois-Xavier Martin, The Office and Authority of a Justice of the Peace, and of Sheriffs, Coroners, & c. According to the Laws of the State of North-Carolina (New Bern, N.C.: Francois-Xavier Martin, 1791), 78;
46. William Hening, The New Virginia Justice, Comprising the Office and Authority of a Justice of the Peace, in the Commonwealth of Virginia (Richmond, Va.: T. Nicolson, 1795), 93-94.
47. Grimke and Hening both derived their indictments from a 1769 manual by John Lord Viscount Dudley and Ward and T. Cunningham; Martin relied on a 1704 manual by William Nelson that included a form from Edward Coke's Booke of Entries, published in 1614.
48. See John Lord Viscount Dudley and Ward and T. Cunningham, The Law of a Justice of Peace and Parish Officer, 4 vols. (London: Woodfall and Strahan, 1769), 4:66;
49. and William Nelson, The Office and Authority of a Justice of Peace, Collected out of All the Books Which Have Hitherto Been Written on That Subject (London: Richard and Edward Atkins, 1704), 101.
50. See, for example, the most widely used northern manual, Conductor Generalis, or the Office, Duty and Authority of Justices of the Peace, High-Sheriffs, Under-Sheriffs, Gaolers, Coroners, Constables, Jurymen, Over-Seers of the Poor, and Also the Office of Clerks of Assize and of the Peace (Philadelphia: Andrew Bradford, 1722), 37;
51. see also Grimke, South-Carolina Justice of Peace, 72;
52. Martin, Office and Authority, 78.
53. Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press, 2005), 181-229.
54. All those for which Godbeer provides details have some association with coercion, as do all three discussed by Foster.
55. Rictor Norton, "Recovering Gay History from the Old Bailey," London Journal 30, no.1 (2005): 46.
56. Kirsten Fischer discusses a slander case in North Carolina involving an accusation of sodomy. The man accused of sodomy was a captain of militia, justice of the peace, and assemblyman who "use[d] divers ways to seduce and perswade" young men in the neighborhood to let him bugger them - a man who used social power to coerce subordinates (Suspect Relations: Sex, Race, and Resistance in Colonial North Carolina [Ithaca, N.Y.: Cornell University Press, 2002], 146-47).
57. Burg, Sodomy and the Perception of Evil, 147
58. For another case from seventeenth-century Virginia involving a shipboard assault by a master on his servant see Jonathan Katz, Gay American History: Lesbians and Gay Men in the U.S.A., rev. ed. (New York: Meridian, 1992), 16-19.
59. Norton, "Recovering Gay History," 46.
60. Katz, Gay/Lesbian Almanac, 111-18.
61. Godbeer provides only limited details of these assaults ("Cry of Sodom," 273).
62. A fuller description is offered in Colin Talley, "Gender and Male Same-Sex Erotic Behavior in British North America in the Seventeenth Century," Journal of the History of Sexuality 6, no.3 (1996): 387-88.
63. Talley offers no analysis of this case beyond noting that "Sension was behaving exactly the way that one would expect a dominant patriarch to act in his transgenerational and transclass sexual adventures" (388).
64. Norton, Founding Mothers and Fathers, 351-52;
65. Block, Rape and Sexual Power, 97.
66. Block, Rape and Sexual Power, 86.
67. Sension escaped prosecution for over thirty years, and when action was taken against him, he was not sentenced to be whipped or fined, let alone to be put to death, but merely had his property placed in bond. Two clergymen discussed by Godbeer likewise escaped with suspensions from their pulpits, after which they won reinstatement. The captain who assaulted his cabin boy in the case discussed by Burg also escaped punishment. The men who were punished for crimes on board ship either transgressed racial boundaries or were repeat offenders from among the crew. The one exception was a ship's captain named Richard Cornish, executed in Virginia in 1624 for sexually assaulting his twenty-nine-year-old indentured servant. Two other men were executed for sodomy in colonial New England. One was a black man who had assaulted a white child; the other had a long history of assaulting children (and perhaps lacked Sension's social standing)
68. See Foster, Sex and the Eighteenth-Century Man, 158;
69. and Katz, Gay/Lesbian Almanac, 69, 90.
70. I examined all the American texts published between 1800 and 1900 available in The Making of Modern Law: Legal Treatises 1800-1926, available online at http://www.gale.cengage.com/DigitalCollections/products/ModernLaw/ index.htm (accessed July 2008), a total of 449 volumes.
71. For examples of manuals that retained eighteenth-century forms see Joseph Chitty, A Practical Treatise on the Criminal Law, 4 vols. (Philadelphia: E. Earle, 1819), 2:45-46;
72. Jeremiah Perley, The Maine Justice, 3rd ed. (Hallowell, Maine: Glazier, Masters and Smith, 1835), 308;
73. and Alexander Tiffany, A Treatise on the Criminal Law of the State of Michigan (Detroit, Mich.: Wm. A. Throop, 1870), 833.
74. For examples that used the stripped-back form see Thomas Starkie, A Treatise on Criminal Pleading (Exeter, N.H.: Gerrish & Tyler, 1824), 434-35;
75. John Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases (New York: S. Gould, 1824), 210;
76. and Elijah Haines, A Practical Treatise on the Powers and Duties of Justices of the Peace and Constables, in the State of Illinois (Chicago: Keen & Lee, 1855), 199-200.
77. "A Confirmed Sodomite," National Police Gazette, 11 December 1847. Thanks to Shane White for locating this story and the following examples during his own research at the American Antiquarian Society.
78. "The Sodomites and Their Practices, No. 3 - Old Collins," Whip, 12 February 1842. On the flash press see Patricia Cline Cohen, Timothy Gilfoyle, and Helen Lefkowitz Horowitz, The Flash Press: Sporting Male Weeklies in 1840s New York (Chicago: University of Chicago Press, 2008).
79. "Monsters," Flash, 14 August 1842, reprinted in Cohen, Gilfoyle, and Horowitz, Flash Press, 197-198
80. Jonathan Ned Katz, Love Stories: Sex between Men before Homosexuality (Chicago: University of Chicago Press, 2001), 402-406
81. John D'Emilio and Estelle Freedman, Intimate Matters: A History of Sexuality in America (1988; Chicago: University of Chicago Press, 1997), 123;
82. Edwin Burrows and Mike Wallace, Gotham: A History of New York City to 1898 (New York: Oxford University Press, 1999), 797.
83. Neither source gives precise figures for the number of cases involving each circumstance; both rely on unpublished research by Michael Lynch, which I have been unable to obtain.
84. The 1820s were an exception, with 76 percent of cases involving girls. See Timothy Gilfoyle, City of Eros: New York City, Prostitution, and the Commercialization of Sex, 1790 - 1920 (New York: W. W. Norton, 1992), 349-350
85. Arnold, "Life of a Citizen," 45-46.
86. Sodomy and sexual violence against women did not, however, move in lockstep. The nineteenth century saw the enactment of criminal seduction laws, which expanded the definitions of heterosexual violence to include coerced sexual acts within relationships when the man had promised to marry the woman. Such offers commonly came quickly in working-class relations and did not preclude the presence of coercion and force.
87. See Stephen Robertson, "Seduction, Sexual Violence, and Marriage in New York City, 1886-1955," Law and History Review 24, no.2 (2006): 325-367
88. Lawrence v. Texas, Scalia, J., dissenting, 12.
89. Eskridge, Gaylaw, 374.
90. Eskridge, Gaylaw, Ibid., 375.
91. Robertson, Crimes against Children, 239-240
92. For arrests see William Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (New York: Viking, 2008), 56, 66, 76-77, 86-87, 98.
93. For new indictments see Francis Wharton, Precedents of Indictments and Pleas, 2 vols. (Philadelphia: Kay & Bro, 1881), 1:219-20;
94. and Samuel Maxwell, A Practical Treatise on Criminal Procedure (Chicago: Callaghan, 1887), 487-488
95. For texts that retained old forms see Alexander Tiffany, A Treatise on the Criminal Law of the State of Michigan (Detroit: Richmond & Backus, 1889), 917;
96. Ossian Cameron, Illinois Criminal Law and Practice (Chicago: E. B. Myers, 1898), 70;
97. Robert Marr, The Criminal Jurisprudence of Louisiana, 2 vols. (New Orleans: F. F. Hansell & Bro., 1923), 1:223-224
98. Joel Prentiss Bishop, Prosecution and Defence: Practical Directions and Forms for the Grand-Jury Room, Trial Court, and Court of Appeal in Criminal Causes (Boston: Little, Brown, 1885), 527.
99. Robertson, Crimes against Children, 240-41, 244-245 (N = 16/66).
100. For the crime against nature statute see Laws of New York 1881 (Albany: New York State, 1881), vol.3, chap. 676, 74-75.
101. For judicial interpretation of that law see Lambertson v. The People, 5 Parker's C.R. 200 (1861).
102. For the amendments sponsored by the NYSPCC see Laws of New York 1886 (Albany: New York State, 1886), chap. 31, 41;
103. and Laws of New York 1892 (Albany: New York State, 1892), chap. 325, 682.
104. Robertson, Crimes against Children, 57-72.
105. Even the relative absence of the coerced acts involving adults that appeared among earlier sodomy prosecutions may have reflected broad understandings of sexual violence in this period, which allowed limited scope for such assaults. The relatively greater understanding and physical capacity attributed to adults contributed to jurors and judges employing a definition of rape in the case of women that was even narrower than that provided in the law. Only a physically violent attack where no prior relationship between victim and assailant existed constituted rape, and then only if a woman suffered "observable injuries" that demonstrated that she had resisted to the limit of her capacity (ibid., 32-35). If this age-inflected understanding of sexual coercion had carried over into sodomy cases, the expectation that men possessed an instinctive ability to resist an assault physically would have foreclosed much of the narrow definition of sexual violence available to women.
106. Ibid., 37-135, 240-241
107. Ibid., 139-202, 244-245
108. Laws of New York 1950 (Albany: New York State, 1950), chap. 525, 1278-79.
109. For the interpretation of this statute see People v. Doyle, 304 N.Y. 120 (1952);
110. and William Nelson, The Legalist Reformation: Law, Politics and Ideology in New York, 1920 - 1980 (Chapel Hill: University of North Carolina Press, 2001), 202-205
111. William Eskridge is one of the few scholars to note this change, but consensual sodomy is the focus of his discussions (Gaylaw, 84; and Dishonorable Passions, 92, 119-20).
112. Papers of Governor Dewey, 1950 (Albany: State of New York, 1950), 412.
113. Robertson, Crimes against Children, 172-173
114. Eskridge, Dishonorable Passions, 109-386.
115. Block, Rape and Sexual Power, 12.