When Utah enacted its first code of laws, as the State of Deseret in the 1851, Mormon legislators prohibited “any man or boy from having, or attempting to have, any sexual intercourse with any of the male creation.” The penalty for the offense was imprisonment or a fine “as the court may direct.” The legality of the State of Deseret’s laws was dubious in a territory designated by the federal government as Utah Territory and thus, a new criminal code was adopted in 1852. Either by design or simple omission, the 1852 code left out any mention of sodomy, thereby, in de facto, legalizing homosexual sodomy.
Sodomy was finally defined as a felony in Utah, when the territory legislators, in 1876, adopted California’s entire criminal code, and was now punishable by imprisonment up to five years. The law also established a penalty of up to 10 years for “assault with intent to commit sodomy.” The reasoning behind the stiffer penalty was that consensual sodomy was harder to prosecute than sexual assault, which would have had the same designation as attempted male rape.
The distinction of being the first man tried under Utah’s new sodomy law was Dr. Perry McClanahan of Colorado. In 1881, the doctor was accused of seducing a 17-year-old male patient. The doctor, in his defense, explained that he hadn’t “slept with two men for 15 years.” After two hung juries, the judge jailed McClanahan for three months, and upon release the judge urged the doctor to take his practice outside of Utah.
In 1907, Utah legislators increased the penalty for sodomy to three to 20 years in the state penitentiary, which was in line with most surrounding states. Lawmakers also enacted legislation that deemed “every lewd or dissolute person” in Utah to be a “vagrant” and “subject to punishment for a term of up to 90 days in jail.” This law punished homosexuals, who could not be prosecuted for sodomy, with at least some jail time.
The strange case of Utah v. Johnson came before the Utah Supreme Court in 1913, wherein an African-American man appealed his sodomy conviction for having given a man a “blow job.” The court reluctantly ruled that the act of “fellatio” was not a violation of the state’s sodomy statute. The Justices opinion was that, “while we, from the standpoint of decency and morals, fully concur in all that these and other courts have said regarding the loathsome and revolting character and enormity of the act charged, yet we cannot, in the absence of legislative enactment making such acts criminal and punishable, denounce and punish them as crimes. To do so would be in effect be judicial legislation.”
Utah state legislators took nearly 10 years to address criminalizing fellatio and cunnilingus. In 1923, the definition of Utah’s sodomy statute was broadened by the addition of oral sex. The new statute defined “sodomy or any other detestable and abominable crime against nature” to include sex acts committed “with either the sexual organs or the mouth.” Oral sex was officially a felony punishable by imprisonment. By the actions of the 1923 Legislature sodomy was no longer defined as “penis penetration of the anus,” and thus consequently lesbian sexual acts were also forbidden by Utah’s criminal code.
In 1925, Utah legislators, reflecting on the emergence of the pseudo science of eugenics, enacted a law to sterilize, by castration, inmates of state institutions who were deemed “afflicted with habitual sexual criminal tendencies.” Eugenics was a bio-social movement which advocated the improving of the genetic composition of a population by preventing “defective people” from reproducing. In 1929, Utah’s sterilization law was amended to specifically include the word “degenerate” in the description, which made homosexuals eligible for sterilization.
Utah’s sterilization law was challenged before the Utah Supreme Court by Easu Walton, another African-American and a homosexual. Walton was a 24-year-old native of Kentucky incarcerated in the state penitentiary in Salt Lake City for a series of petty thefts. In prison, Walton had been observed by a prison guard committing a sex act with another inmate. Both inmates were described by the guard as partly undressed with their pants down. However, Walton was also observed lying on top of the other prisoner with his penis erect. The guard pressed charges against Walton and testified that he had “frequently acted lovingly toward other boys who were confined in the prison.” The state produced another witness, also an inmate, who testified that Walton had solicited him for sex. When the case made it to the Utah Supreme Court, they ruled in Davis v. Walton that Walton’s behavior was not punishable by Utah’s sterilization law and unanimously blocked his planned castration. However, this same court upheld the constitutionality of Utah’s sterilization law.
The Utah Supreme Court did not rule on another case involving homosexuality until 1932. In Utah v. Gregorious, a case invoking sex with a minor male, a 15-year-old testified that he willingly submitted to the act of sodomy with the defendant, a Greek man named Gregorius. The teenager stated at trial that Gregorious had started “kissing me and loving me and then he slid down my pants.” When the court asked if he resisted when Gregorious had “pushed him onto a bed,” the youth replied, “I did not see any reason why I should resist from it.” The state’s argument was that because the boy was a juvenile, his testimony “required no corroboration.” The court disagreed and by a vote of 3-2, it reversed the defendant’s conviction, ruling that corroboration was needed for a conviction of sodomy “after noting other errors in the trial.”
Criminal records from the first half of the 20th century reveal that the decision to sentence men to prison for sodomy was often based on the religious affiliation of the defendants, their social class, whether sexual assault or battery were involved and if a minor was involved. Court cases show that men were sent to prison even for consensual sodomy. There was a case where arbitrary sentencing was based on the ability of the state to pay for the incarceration of a transient convicted of sodomy during the Great Depression.
In 1932, Charles Brown was tried in Utah’s 3rd District Court for the “infamous crime against nature.” The vagabond was charged with raping a fellow man in the Rio Grande Depot train yards. However, he was sentenced to only one year in prison, as the prosecuting attorney argued that the state could not afford the expense of a long incarceration. “All the interest that the state has in this case, or could have, is just a technical theory of a violation of the law… (and) in view of the fact that in the time of this depression, when the county and the city and all of us need money for the relief of our citizens… the expense required to keep this defendant there (in prison) for three to 20 years would be a whole lot more than what would benefit the state.”
Ten years later in 1942, when the state was flushed with cash from the influx of federal jobs during World War II, the state had no qualms about sentencing homosexuals to long terms in prison. In stark contrast to Charles Brown, Robert E. Little was convicted of sodomy and sentenced by the 3rd District Court to serve three to 20 years. Evidently his imprisonment was viewed as a benefit to the state.
Surprisingly, Utah became the first state to reference the Kinsey Report in a sodomy case before the Utah Supreme Court. In January 1949, a justice on the Utah Supreme Court referred to the Kinsey study while ruling on Utah v. Cooper. Justice James Wolfe wrote, “Congenital homosexuals, and to a certain extent, psychopathic homosexuals, may be wholly unresponsible for their homosexual acts. They are motivated by biological and physiological factors which may be beyond their power to combat or control.” Two other members of the five Utah Supreme Justices joined Wolfe, giving his opinion precedent value.