A Crime Unfit to Be Named: Arkansas and Sodomy

Abstract

THE TURBULENT DECADE OF THE 1970s witnessed extraordinary and hotly-contested transformations in American attitudes toward and sexuality. The values of free love and tolerance that had sprouted during the 1960s began to take root in everyday life in the 1970s. The gay and lesbian movement, prospering from the successes of earlier protest movements, gained many legal victories across the nation. Queer visibility was on the rise.' In 1972, for instance, moviegoers were charmed by director Bob Fosse's Cabaret, one of the first American films that openly dealt with the homosexuality of its characters.2 On December 15, 1973, the American Psychiatric Association unanimously approved referendum removing homosexuality from its list of mental illnesses.3 This development had tremendous impact on the public perception of homosexuality, not to mention the self-esteem of gays and lesbians in the United States. Yet conservative element, personified by orange juice huckster Anita Bryant, soon unleashed backlash that would wash over the state of Arkansas. Early in 1977, the Arkansas Gazette reported that the Arkansas House of Representatives had discovered sex and intends to do something about it.4 During the first seven days of the session, legislators introduced four bills dealing with sexual conduct. Rep. Arlo Tyer of Pocahontas took credit for the first two bills: House Bill 237 sought to prohibit R and X rated movies within the state, and House Bill 238 would levy tax of $1,500 on men and women who lived together without having married. This latter sought, according to the Gazette, to make the point that while such cohabitation is now common in many communities, it was not to be condoned by the state. Besides paying the tax, the couple would also be required to undergo blood tests and obtain from chancery judge to continue cohabiting. The judge would only issue the living together permit if the couple were able to show good cause.5 The third bill, House Bill 191, introduced by Rep. Earl Jones of Texarkana, sought to censor sexually explicit material in the state. The comprehensive obscenity bill would outlaw books and magazines that had no redeeming social or artistic value. The fourth was written hastily in reaction to development that disturbed Rep. Bill Stancil, high school football coach from Fort Smith. Two men had been caught in sexual act by police officer but apparently had broken no law. On February 12, 1976, James Black (Sammy to his friends) began drinking early. After several complaints from neighbors, Little Rock police took him into custody for public drunkenness. They put Black in the at 3:30 p.m. An hour later, Willie Henderson, who had been arrested for driving under the influence of alcohol, joined him. The two men were not alone. Besides the jailers who periodically patrolled the drunk tank and its surrounding cells, about fifteen other detainees waited to sober up. But these circumstances did not diminish Black and Henderson's attraction to one another. An hour after Willie Henderson arrived in the drunk tank, patrolman Hugh Gentry noticed the two men engaged in an act of fellatio. As it turned out, the behavior of the two men was perfectly legal, or at least no longer illegal. At midnight on January 1, 1976, the Arkansas Criminal Code had changed. The new code held no statute making sodomy crime. The two men could not be charged with sodomy, as they could have been before January 1. Nor could the men be prosecuted for indecency, which was defined under the new code as follows: a person commits public sexual indecency if he engages in any of the following acts in public place or public view: (a) an act of sexual intercourse; (b) an act of deviate sexual activity; or (c) an act of sexual contact.' On February 13, 1976, Municipal Judge Jack Holt, Sr., long known for his liberal views, ruled that the Little Rock city jail was not public place. …