Criminal records are hard to locate, but stories can be found in old newspapers
by David W. Jackson
I’m not a lawyer, nor do I play one on TV. Laws are rules intended to address issues for the common good of society’s advancement, safety and security — to guarantee equal rights and to protect fair treatment. Some arbitrary, seemingly subjective, often discriminatory and occasionally unconstitutional jurisprudence muddies our way until it might be appealed and overturned.
Perhaps one example of the latter crept onto the books eons ago: laws prohibiting sodomy. My colleague Ross Freese said, “sodomy is defined as non-procreative sexual activity, as per the English Common Law tradition of sodomy laws under King Henry VIII in 1533.” More specifically, intercourse between two consenting adults of the same gender was a “thing” for eons, likely since Genesis. Someone, somewhere, at s
ome point in time thought it was a bad thing, and forbade it. Whole books cover the subject.
Our local connection to this ancient litigation stems from 1812 when Missouri became a U.S. Territory and anti-sodomy laws of the Louisiana Territory from a decade earlier were adopted. In 1855, the newly formed Kansas Territorial Legislature also incorporated anti-sodomy laws.
That means since the outset of settlement of the frontier, local LGBT citizens, even though there was no vocabulary to define them as such, faced discrimination in society and in the face of the law. Were they “horse whipped?” Did others face illegal retribution such as lynching or another murderous end? Others suspected or convicted of engaging in sodomy were sent “up river” where their ultimate fates were lost to history. There is scant evidence of these early anti-sodomy laws being implemented.
My friend James A. Tharp, whose research into the earliest existing local newspapers for coverage of LGBT-matters, shared his data for inclusion in my recently published book “Changing Times: Almanac and Digest of Kansas City’s LGBTQIA History.” Tharp found numerous articles about men and women who were arrested in Kansas City for illegal behaviors. In addition to sodomy, Tharp also found stories devoted to residents arrested for cross-dressing.
This installment gives the low-down on some of Kansas City’s earliest, extant cases of sodomy. The next issue of “The Phoenix Newsletter” will address the history of cross-dressing in Kansas City.
The first local mention of an instance of alleged sodomy that survives—or has yet been uncovered—was in 1877. “Frank Ashton was fined $54 for ‘committing an act that should be nameless…but nonetheless abominable.’ He decoyed two boys into an empty car [carriage] in West Kansas [West Bottoms] and was caught in the act of crime.” The course of time would surely have been altered if our forebears had distinguished sodomy from pedophilia, a term that wasn’t coined until 1898. Freud wrote about pedophilia in 1905, but it was not widely mentioned until 1918, and not included in the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders” until 1952.
Tharp’s findings of the earliest “crimes against nature” are chronologically presented in “Changing Times.”
Earlier instances and arrests likely occurred but newspaper and municipal-court documents are scant or nonexistent prior to that time. Municipal records were often destroyed after a certain length of time because they were not a court of permanent record, like civil or criminal court. The best alternative to such early incidents are local newspapers from the early- to mid-1870s. If a local court case was appealed to a higher court, or in the cases of sodomy, involved the Missouri State Penitentiary, then other records might be located with significant effort.
Some other, early instances of sodomy in Kansas City include:
David “Dave” Flaherty, who was arrested in October 1880 for “a terrible crime against nature,” whereupon he molested Freddy Moser/Mosier, [about 12-years-old] in a vacant house in West Kansas [West Bottoms.] Moser/Mosier lived with his parents on Mulkey Street along the bluff overlooking the West Bottoms. He had been sent to take his father’s supper to him, where his father was working on Union Avenue. Flaherty was accused, charged, convicted and fined ‘the full benefit of $500.’ Not able to pay the fine, Flaherty was to serve a year ‘on the rock pile.’”
In May 1889, George Smith, “a young white man of Sheffield . . . was arrested for sodomy, and held to answer to the grand jury…in $1,000 bond.”
The next month, another fellow, “Joseph Davis, a white widower, 47 years old … was arrested for attempted sodomy of Edward Fernald (or, Fernold), a 12-year-old. He was held for $1,000 bond for the next Grand Jury, which found him guilty. He was sent to the Missouri State Penitentiary for 10 years.” An abstract of the official record located by Tharp is presented in “Changing Times.” Davis was released in 1897 after serving three-quarters of his term. There must have been a witch hunt that year because William Ridgely was similarly indicted in September.
The next year in April 1890, “in the criminal case, State v. Arthur Henderson, indicted for sodomy, Henderson was sentenced to 10 years in the Missouri State Penitentiary. He died in prison in 1891” from a form of tuberculosis and a terrible skin rash likely caused from insect bites and exacerbated by his immunosuppression system.
These were real people. And it’s impossible to ascertain if these citizens received fair and equal treatment under the law. Given the visceral aversion to amoral behavior, real or perceived for centuries, it makes one wonder how many were unjustly arrested, indicted and sentenced.
Sodomy in the United States largely remained illegal until more recently.
Illinois repeal of its sodomy laws was effective in 1962, making Illinois the first state in the U.S. to decriminalize homosexual behavior between two consenting adults in private. Illinois’ progressive measure led Kansas City LGBT pioneers, headed by Drew Shafer, to incorporate their Phoenix Society for Individual Freedom with a formal nonprofit charter in Illinois on May 20, 1968 (See “The Phoenix Newsletter,” October 2016).
In 1975, The American Medical Association (AMA) passed a resolution urging states to repeal laws prohibiting acts of same-sex sodomy between consenting adults.
The following year, the national spotlight fell on Kansas City’s Kemper Arena, where the 1976 Republican National Convention was held. While Republicans were busy nominating Gerald Ford for president, members of the National Coalition of Gay Activists camped out with other event protesters at Penn Valley Park and passed out thousands of leaflets and Gay Rights ’76 buttons encouraging the repeal of sodomy laws.
The U.S. Supreme Court decision Bowers v. Hardwick upheld in 1986 the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. In 2003, however, the Supreme Court in Lawrence v. Texas overturned its previous ruling and deemed sodomy unconstitutional.
Missouri’s antiquated sodomy laws were on the books until they were removed in 2006 — 15 years after the Supreme Court’s historic ruling. Kansas has yet to repeal its sodomy laws (as does Alabama, Florida, Idaho, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, Texas and Utah).
Andy Hum, co-host of GayUSATV, said he met George W. Bush years ago, and while shaking hands asked Bush about Texas’ sodomy laws. Bush said, “Why are you bringing that up? Those laws aren’t used.”
Oh contraire, Monsieur.
David W. Jackson is co-founder of the Gay and Lesbian Archive of Mid-America (GLAMA) and author of Changing Times: Almanac and Digest of Kansas City’s LGBTQIA History (orderlypackrat.com/s/books.