Introduction
“Without condoning acts of some defendants, we must deplore this stupid affair and general tendency to equate homosexuals with molesters.”
-Dal McIntire (pseudonym for Jim Kepner), 1956 [1]
Nestled in Boise’s Foothills, a stone’s throw away from the downtown center, the Idaho State Penitentiary incarcerated roughly 13,000 male and 217 female inmates from 1872 to 1973.[2] Amongst those incarcerated, the penitentiary intentionally and inadvertently imprisoned queer people and controlled their ability to be paroled until they aligned with what Board of Pardons staff considered appropriate sexual and gender performance.[3] Queer populations experienced incarceration in Idaho for breaking laws against sodomy or Infamous Crimes Against Nature (ICAN), which penalized non-procreative sexual intercourse. Less visible but equally important to queer and prison history were people incarcerated for other crimes who did not conform to traditional gender and sexual norms. For both groups, assessing sexual consent is difficult because most of the “facts” come from inmate records and newspaper articles that are washed in homophobia, transphobia, and misunderstandings of consent.[4] The history of queer inmates at the Idaho State Penitentiary reflects broader American experiences and legal battles in the late nineteenth and twentieth centuries. Individual narratives from the penitentiary demonstrate the complexity of sex-based criminal convictions and concepts of gender and sexuality in rural and predominantly working-class states like Idaho.
Idaho passed its ICAN law during the territory’s first legislative session in 1864. The law stipulated that any “infamous crime against nature” with man or beast could be punished with at least five years and up to life imprisonment.[5] Each state had its own laws pertaining to ICAN and sodomy.[6] These laws commonly conflated pedophilia, bestiality, sexual assault, oral sex, and anal sex, though police rarely enforced them against consensual, heterosexual, and private acts of adults. Idaho Territory revised its ICAN statue in 1887 and took out the maximum life sentence but gave no sentencing guidelines, leaving it open for the courts to decide. Felony provisions in Idaho, however, stipulated a maximum sentence of five years for any crime with no set maximum.[7] The 1887 version also added language to specify that the law covered oral in addition to anal penetration.[8] This change paralleled national trends that criminalized both oral and anal sex.[9]
In 1895, five years after statehood was achieved, Idaho charged Albert Randall in what became the first ICAN case tried in the state. The state convicted him of assaulting a minor and incarcerated him at the Idaho State Penitentiary for twelve years.[10] Over the next eight decades, Idaho convicted 103 men of ICAN or sodomy.[11] The majority were convicted of sex with a minor (fifty-four inmates) and the second largest (twenty-five inmates) for sex with an adult; the remaining twenty-four included five with women, five with animals, and fourteen unknown due to limited documentation.Of the fifty-four convicted of sex with minors, seven featured complex circumstances, such as closeness in age (an eighteen-year-old with a sixteen-year-old, for example), assumptions that the younger person was of age, unclear accounts of age in official records, and uncertainty about whether the inmate normally pursued adults. For cases involving partners close in age, heterosexual relationships with a similar age difference would most likely not have been prosecuted (unless they were interracial or commercial).[12] Though state law enforcers and penitentiary staff conflated what today would be considered pedophilia and same-sex sexual acts by adults, these acts were fundamentally different.
The vast majority of ICAN inmates were white, male, blue collar workers, which reflected Idaho’s racial and labor demographics.[13] No female inmates at the penitentiary were convicted of ICAN, but five female inmates either faced accusations of homosexuality or exhibited some form of gender or sexual queerness during their time at the penitentiary.
Historically, laws controlling sexual acts were vague, which allowed courts interpretive freedom regarding morality laws. In the late 1800s and 1900s, lawsuits in and beyond Idaho argued for greater precision in these laws. For instance, Matt Miller, convicted under the ICAN law in 1898, filed for a writ of habeas corpus in 1913 because the court sentenced him for twenty-five years rather than five. The ICAN law did not stipulate a maximum sentence, so it should have fallen under the state provision of five years for felonies without specified maximum sentences. Miller’s writ was denied, and the outcome demonstrated that those convicted of ICAN in Idaho would face a minimum sentence of five years; anything above that was up to the courts to decide.[14] In 1915, police arrested Charles Altwatter for sodomy in Burke, Idaho, after he performed oral sex on seventeen-year-old Joseph McCarthy.[15] Altwatter contested his conviction in 1916, arguing that the ICAN law did not apply to oral sex. In this case, the court found that ICAN included oral sex because the law encompassed “all unnatural carnal copulations…committed per os or per anum.”[16]
The visibility of sexual interactions between men grew after World Wars One and Two, as U.S. states slowly shifted ICAN laws to separate out sex with adults and sex with minors. Nationally, a stark increase of ICAN convictions began in earnest after World War Two; sodomy laws spurred four times the number of appellate decisions from 1940 to 1970 than from 1910 to 1940.[17] States also enacted “sexual psychopath” laws starting in 1935, and by the 1950s rape law reforms incorporated sodomy with minors into child molestation laws.[18] In 1949, the first instance of separating out sex crimes with adults and minors began in Idaho with Chapter 214 of Idaho Session Laws, which stated that any person engaging in sex acts with a minor sixteen years old or younger would serve a prison sentence no longer than life.[19] Even with this reform, eighteen of the thirty-seven inmates convicted of ICAN or sodomy at the Idaho State Penitentiary from 1949 to 1972 involved sex with minors. Throughout its use in Idaho, ICAN law conflated sexual assault and consensual sex.
After its closure in 1973, the Idaho State Penitentiary opened to the public by 1976 as a museum to tell the history of those incarcerated there.[20] This exhibit expands on the museum’s site interpretation to document the experiences of Idaho LGBTQ+ inmates and explore the ways in which their lives reflected the broader criminalization and medicalization of same-sex desires and subversive gender expression. As is currently the case for queer Americans, people incarcerated at the Idaho State Penitentiary were consistently policed for their queerness, their identities were treated as public safety concerns, and their humanity was only recognized when they heeded normative parameters of gender and sexual performance.
Notes
[1] Dal McIntire [Jim Kepner], “Tangents,” ONE, Jan. 1956, 14.
[2] Amber Beierle, Ashley Phillips, and Hanako Wakatsuki, Old Idaho Penitentiary (Arcadia, 2014), 89; Todd Shallat and Amber Beierle, eds., “Women, Crime, and Doing Time,” in Numbered: Inside Idaho’s Prison for Women, 1887-1968 (Idaho State Historical Society, 2020), 13.
[3] I use the term “queer” in this exhibit instead of LGBTQ+, gay, or other identifiers because it is my belief that queer is the best umbrella term to include the history of people who could not or did not openly identify their nonconforming sexualities or genders (or did not have the identifier to do so) in their lifetimes. In instances where people use terms like homosexual or lesbian to describe someone, I prioritize that usage. Some of the inmates discussed went on to have heterosexual relationships; labeling them as “gay” would be disingenuous and erase the complexity of their sexualities. I fully acknowledge both the painful history that the term “queer” evokes for many people in the LGBTQ+ community and the reclaiming of the word by many LGBTQ+ people.
[4] In some cases, the people involved could not consent freely due to inebriation, power imbalance, or coercion. Similarly, minors cannot legally consent to sex with adults. Age of consent varied throughout the centuries, and Idaho’s age of consent from 1885 to 1890 was 10, and by 1920 it increased to 18 with leniency of five years (as in, a twenty-two-year-old could legally be with a seventeen-year-old). Some acts that today would be considered pedophilia would have been legal if heterosexual. This exhibit does not reflect on the controversial morality of these cases; rather it explores how incarcerating and punishing people for queerness and equating a consenting relationship with assault and pedophilia reflects a heterosexist national, regional, and local mindset of how people are allowed to exist in public and private spaces.
[5] Laws of the Territory of Idaho, First Session § 45 (1864), https://babel.hathitrust.org/cgi/pt?id=mdp.39015063816907&seq=9.
[6] William Eskridge, Jr., Dishonorable Passions: Sodomy Laws in America 1861-2003 (Penguin, 2008), 10.
[7] The Revised Statues of Idaho Territory § 6312 (1887).
[8] The Revised Statues of Idaho Territory § 6810 and 6811 (1887).
[9] Eskridge, Dishonorable Passions, 56.
[10] “Inmates of the Idaho Penitentiary 1864-1947: A Comprehensive Catalog” (Idaho State Historical Society, 2008), https://history.idaho.gov/wp-content/uploads/2018/08/inmates_1864-1947.pdf.
[11] This number was established through researching Idaho State Historical Society inmate catalogs, files at the Idaho State Archives, digitized newspapers, and consultation with Alan Virta (the previous Head of Special Collections and Archives at Boise State University who spearheaded preservation of LGBTQ+ Idaho history). Some inmates were charged multiple times, so 103 reflects all known cases rather than individuals.
[12] Carolyn E. Cocca, Jailbait: The Politics of Statutory Rape Laws in the United States (State University of New York Press, 2004), 23.
[13] Inmate statistics were 84% blue collar, 11% white collar, and the rest students (2), creative sector (2), unemployed (1), and unknown (1). Racially, they were 81% white (7 were white immigrants), 12% Latine, 4% Black, 2% Native American, 1% AAPINH.
[14] In re Miller, 23 Idaho 403, 129 P. 1075 (1913).
[15] Peter Boag, Same-Sex Affairs: Constructing and Controlling Homosexuality in the Pacific Northwest (University of California Press, 2003), 37.
[16] The above quoted text was used in court. The ICAN law did not explicitly address this, stating, “Any sexual penetration, however slight, is sufficient to complete the crime against nature.” See The Revised Statues of Idaho Territory § 6811 (1887); State v. Altwatter, 29 Idaho 107, 157 P. 256 (1916).
[17] Eskridge, Dishonorable Passions, 65, 85.
[18] Estelle Freedman, “‘Uncontrolled Desires’: The Response to the Sexual Psychopath, 1920-1960,” Journal of American History 74 (1987): 83; Stephen Robertson, “Shifting the Scene of the Crime: Sodomy and the American History of Sexual Violence,” Journal of the History of Sexuality 19, no. 2 (2010): 241-242.
[19] Idaho Session Laws, Chapter 214 (1949): 455.
[20] Tena Andersen, “Historical Society Offers Tours Behind the Walls: Ghosts Haunt Century-Old Idaho Penitentiary,” Idaho Statesman, 26 July 1976, 9.