Illinois Legalizes Consensual Homosexual Sex

Illinois became the first U.S. state—and for ten years the only state—to abolish its laws that prohibited consensual same-gender sex.

Date 1961

Locale Illinois

Summary of Event

Before 1961, Illinois, like many states, had prohibited various sexual behaviors that legislators were unwilling to define explicitly. The Illinois statute read in part, “The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the penitentiary for a term of not less than one year and not more than ten years.”

There were several problems with this law as it was written. First, the vague language did not give clear warning to potential offenders; people could not always tell beforehand what acts might be deemed “crimes against nature.” The vagueness of the language led to uneven enforcement of the laws, since law enforcement officers and prosecutors were unwilling to bring charges if they could not clearly prove the illegality of certain acts. In Illinois, a judgment in court was required to determine what acts were forbidden. Other states, including Wisconsin and Louisiana, had revised their penal codes during the 1950’s, and in the process they had written new, more explicit, definitions for “sodomy” and “crimes against nature.”

When the Illinois penal code was revised in 1961, on the recommendation of the American Law Institute, it was noted that although the 1948 Kinsey Report on male sexuality had stated that more than one-third of adult males had participated in some form of homosexual behavior, the prosecution rate of those persons seemed to be well under 1 percent. It was particularly difficult to establish guilt in the cases of private, consensual sexual activity because corroborating witnesses almost always refused to come forward or could not be found. However, the fear of prosecution was significant enough to make those involved in prohibited sexual activity easy targets for blackmail, and also, this fear could lead to psychological injury.

The drafters of the 1961 code focused on four goals that they believed were appropriate legislative concerns: protection from nonconsensual sex, protection of minors, protection of the public from open displays of sexual behavior, and protection of marriage. Section 11-2 of the new code included a more specific definition of the types of behaviors that were forbidden, but the code intentionally excluded all sexual acts conducted in private between consenting adults. In fact, other legislative bodies had made similar revisions to their codes, but like the American Law Institute’s 1961 Model Penal Law, they protected only private consensual behavior between married couples. Illinois was alone in protecting private sexual behavior regardless of the marital status or sexual orientation of those involved.

The revised code did, however, prohibit “lewd fondling or caressing of the body of another person of the same sex,” although such fondling by heterosexuals was not forbidden. The drafters felt that caressing between people of the same gender was so “disgusting and offensive” that most people would be offended to see it. Only two years later, in 1963, a new law made it illegal to publicly fondle a person of “either sex.” In 1970, the Illinois constitution was amended to strengthen the right to privacy.

Significance

It took ten years before Idaho, in the process of revising its criminal code, became the second state to repeal its laws against private consensual sex. Most residents did not notice the change until a gay newspaper ran a story celebrating the repeal. A public outcry from the Mormon Church and the Roman Catholic Church led to an emergency session of the legislature and a repeal of the new code. Idaho thus became the first state to reinstate a sodomy law that it had previously discarded.

The third state to repeal its sodomy laws was Connecticut, also in 1971. Twenty-one other states, mostly in the north and the west, soon followed suit. The first southern state to exclude private consensual sexual behavior from its criminal code was Arkansas. In 1975, it made a thorough revision of its criminal codes, as several other states had done previously, and repealed its sodomy laws. In 1977, Arkansas reinstated only that part of the law that applied to homosexual sex; private consensual heterosexual sex was still protected.

By the year 2000, only fourteen states and Puerto Rico still had laws on the books that prohibited sodomy. On June 26, 2003, the U.S. Supreme Court, in Lawrence v. Texas, ruled that two gay men who had been charged with sodomy were denied equal protection and their right to privacy when they were arrested for having private consensual sex in their home. By a vote of 6 to 3, the Court declared all sodomy laws in the United States to be unconstitutional when they restrict noncommercial private acts between consenting adults.

Bibliography

Harvard Law Review. Sexual Orientation and the Law. Cambridge, Mass.: Harvard University Press, 1990.

Rubenstein, William B. Cases and Materials on Sexual Orientation and the Law. St. Paul, Minn.: West, 1997.

Washington University School of Law. “Deviate Sexual Behavior Under the New Illinois Criminal Code.” Washington University Law Quarterly (1965): 220-235.

Williams, Walter L., and Yolanda Retter. Gay and Lesbian Rights in the United States: A Documentary History. Westport, Conn.: Greenwood Press, 2003.