Lambda Lore

Utah law found excuses for homosexual institutionalization

During the paranoid political climate of the early 1950s, Utah lawmakers were prompted to enact a psychopathic offender law to curtail sexual deviancy. Legislators intended to protect the public from sex offenders, broadly defined to include everyone from rapists to peeping toms, according to one medical professional. The statute provided for the institutionalization of the “very idle or lewd or dissolute person” or any person who “deports self so as to endanger the morals or health of himself or others.” In effect, the law allowed Utah judges to sentence anyone convicted of sodomy, lewdness or “an attempt to commit either,” to not only the state prison, but also to the state mental hospital.

Under the new law, homosexuals and others charged with sex crimes were compelled to be examined by state-appointed psychiatrists. If determined to be a “mental case,” sex offenders were committed to the state mental hospital in Provo, where they potentially could be held until, in the opinion of the superintendent, they were unlikely to offend again. Until 1974, homosexuality was listed as a pathology by the American Psychiatric Association and considered a mental illness.

Dr. Owen P. Heninger, superintendent of the state hospital, was a major critic of Utah’s psychopathic offender law. He said the law was unrealistic and didn’t discriminate between minor offenders, such as peeping toms, and those who committed serious crimes like rape and murder. He argued that the law was so broad that a person who tells a dirty story could, under strict application of the law, be committed to the mental institution. Heninger’s main concern was that the act of lewdness or wanton public indecency could get a person committed. Lewdness is the legal term for whatever sexual relation society deems as tending to corrupt the morals of the community; however, it mainly applied to public masturbation or indecent exposure. As a result, the superintendent felt that judges would be “loathe” to convict a man with the possibility of sentencing him to the state mental hospital for the crime of lewdness.

In consequence to Utah’s draconian laws, state mental-health practitioners wanted clarification from the office of the attorney general whether they had ultimate authority to keep sex offenders in the institution until they had overcome their abnormalities or whether the Utah Board of Pardons had ultimate jurisdiction to pardon them. In 1953, Attorney General E. R. Callister decided that the Board of Pardons was ultimately authorized, but was to exercise discretion on whether to grant or deny a parole to persons committed to the hospital based on medical opinion of the doctors involved in each case.

At some point during Utah’s 1953 legislative session, lawmakers reduced the act of consensual sodomy from a felony to a misdemeanor, although forcible sodomy was kept a felony. The change to the state’s sodomy statutes was not prompted by any legal enlightenment on the part of the legislators. Instead, the change was prompted by their desire to make the conviction of homosexuals easier. Prosecutors had complained that many of the state judges were reluctant to make felons out of people engaging in consensual acts of homosexuality. Many homosexuals were being convicted under the charge of disorderly conduct and sentenced to either probation or minimal jail time. Even though adult consensual sodomy was no longer a felony, the public exposure of one’s homosexuality on a morals charge not only meant family disgrace and loss of employment, it also sometimes led to suicide.

After exposure to incessant demagoguery in the nation’s capital over the dangers that homosexuality posed to the nation, additionally, Utah lawmakers amended the 1951 psychopathic offender law to include assault with intent to commit sodomy. Legislators, while reducing criminal penalties for consensual homosexuality, still wanted compulsory institutionalization of homosexuals charged with seduction or solicitation.

Fortunately, in most cases, a conviction for sodomy between adult homosexuals required a collaborating witness to the act. Therefore, consensual sodomy was rarely prosecuted unless caught by a vice officer. However, if a juvenile was involved, no eyewitness testimony was required beyond that of the juvenile. This explains why many of the criminal convictions published in the media involved teenagers and an adult, thus giving an unwarranted impression that homosexuals were predators of youth.

While arrests for sodomy after 1951 always resulted in a court-ordered examination to determine the mental fitness of homosexual offenders, rarely did they lead to compulsory hospitalization. Court-appointed psychiatrists in the 1950s were of the opinion that homosexuality was a mental illness, but most didn’t believe it constituted a dangerous psychosis. Most homosexuals charged with disorderly conduct were simply diagnosed with sociopathic personality disorders not requiring hospitalization. Nevertheless, homosexual men were placed in state psychiatric hospitals.

Claude B. Schulte, owner of the Apache Club in Ogden, was arrested on a charge of sodomy with a teenager in April 1951. The following month, Judge Charles G. Cowley of the 2nd District Court committed Schulte, 32, to the Utah state hospital for life or until the director of the institution deemed him cured. Schulte, who had had a previous run-in with city vice in 1949 when he was arrested for having a gambling device in his tavern, was evidently an outspoken critic of the Ogden City Council, which may have influenced the judge.

In Salt Lake City, Benjamin Greenwald, a New York native, had lived 10 years in Salt Lake City when he was arrested for sodomy. He was sentenced to the state mental hospital. However, after one month, Greenwald was discharged. The doctors reported to the court that Greenwald, while unimproved of his homosexuality, he was not psychotic. The court suspended Greenwald’s sentence on the condition he returned to Brooklyn.

Ephraim L. Yeates was a 56-year-old man when convicted of sodomy with two teenage boys in 1955. A father of seven, Yeates admitted to the court of a 16-year history of homosexuality that included masturbation and oral sex. Court-appointed psychiatrists recommended he be admitted to the state mental hospital for an indefinite period because of his “increasing capable aggressive activity in connection with his homosexual interest.” Yeates died in the custody of the hospital on Dec. 6, 1957.

The last case to appear before the Utah Supreme Court involving sodomy before the Stonewall Rebellion was that of Utah v. Turner. In the 1955 ruling, the court unanimously rejected the defense’s contention that Turner was not accountable for acts of sodomy due to his drunkenness. The court ruled the defendant’s voluntary intoxication did not excuse him from culpability to the crime. The Justices commented, “the offense with which defendant was charged could not have been committed by accident or while intending to do some other act.”

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  1. Thanks Ben Williams! I was just having a discussion last night about the dangers that can happen politically when we are two or three generations removed from the negative effects of bad public policy. Your articles are so important. You are a treasure.

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