As a queer historian, a frustrating amount of my research comes from records of arrests. Sodomy, prostitution, disorderly conduct, masquerading, vagrancy, the crime against nature, solicitation – the list of laws that have been used in New York City to criminalize queer lives is long, varied, and stretches all the way back to 1634, when a Dutch colonial anti-sodomy law was used to prosecute a settler named Harmen van den Bogaert and an enslaved African man called Tobias.
I say frustrating because these arrests rarely say much to the historian interested in queer life: a name, a date, a charge; perhaps if you’re lucky you can find a newspaper squib that gives a line or two of context. Often, they are indicia in the truest sense, pointing towards something but not revealing much of anything (other than the existence of the state apparatus of criminalization). But in times where there was little public discussion of queer lives, records of arrests are some of the few regularly discoverable signposts pointing to where queerness may have existed.
The most useful arrests – from a historian’s point of view – are ones that lead to a trial, where evidence and testimony can help frame the meaning and context of the arrest itself. However, even these cases are only useful if the attendant records survive.
For this reason, the discovery of a trove of historical trial transcripts represents an incredible opportunity for historians, particularly those interested in queer topics. In his book Respectability on Trial: Sex Crimes in New York City, 1900 – 1918, sociologist Brian Donovan mines one such priceless collection to give insight into the ways in which “the criminal courtroom throws into bold relief the contested nature of gender and sexuality in early urban America.” As he explains in his introduction: "the trial transcripts considered in this book survived by chance. In 1972, the John Jay College of Criminal Justice received a shipment of boxes from the New York Supreme Court containing verbatim transcripts from trials conducted in New York City’s main criminal courthouse from 1883 to 1927. The transcripts – hundreds of thousands of typewritten pages – decayed in storage for over a decade until an enterprising group of historians and librarians at John Jay College recognized the documents’ importance and created the Trial Transcript Collection in the early 1980s."
The Trial Transcript Collection is fascinating, and at least partially accessible online. It has the opposite problem of most records of arrests, in that it is a vast storehouse of information that can be overwhelming. Just the seventy-five cases that Donovan looked at contained some sixteen thousand transcript pages, which he spent years reading and re-reading. In the end, he focused on four types of cases – seduction, rape, compulsory prostitution (AKA “white slavery”), and sodomy – to show “how constructions of social respectability shaped how sex crimes were understood” in the Progressive Era.
This period has often been referred to as the first sexual revolution in America. Basic assumptions about gender and sexuality were rapidly recast in the waning years of the 19th century and the dawning years of the 20th. Women were no longer seen as asexual, cloistered creatures that needed to remain in the home. Homosexuality, as an identity category, was created. Dating, pre-marital sex, birth control clinics, mixed-sex entertainments, expanded work opportunities for women – all of these now common features of life came to ascendency during this period. What connected all of these trends? They redefined what it meant to be a “respectable” man or woman. However, this was not some painless, natural evolution by which our ideas about human freedom and sexuality changed. Rather, it was more like a cage match of dueling ideologies.
Nowhere can this be seen more clearly than in sex crimes trials, where the actions and identities of both the victims and the perpetrators were used to construct narratives about guilt and innocence, which often boiled down to who was seen as a more respectable, proper, or deserving citizen. As Donovan writes, "the courtroom struggles illustrate, in microcosm, a clash between competing ideological frameworks: well-established ideas of feminine respectability and emerging ideas about women’s sexual agency, manhood defined by marriage and responsibility, and new freedoms available to bachelors and men who exhibited nonhegemonic ideas of manhood."
Donovan brings three analytic approaches to bear on these cases: feminism, cultural-historical criminology, and conversation analysis. The first, obviously, frames the project as a whole. The second shows how these court cases can be examined not to determine guilt or innocence (or as Donovan puts it, “what happened”), but “as imprints of particular ideas about sex, gender, men, and women” at a particular moment in time.
The third pillar of his scholarship, conversation analysis, is the weakest aspect of his methodology. Even as he names it as one of his approaches, Donovan admits that the transcripts lack the necessary elements for proper conversation analysis, and that scholars who employ this methodology reject “context-based interpretations of conversational data,” which unfortunately is a good description of the way in which he employs it. “Conversation analysis” in his usage seems simply to be a gussied-up way of saying he’s done a close reading of the texts.
However, Donovan’s close readings are very valuable, and they enable him to pinpoint telling exchanges and details in the transcripts that highlight the changing nature of sexual respectability at the turn of the century.
Take, for instance, his chapter on sodomy. Historically, sodomy was a catch-all category that covered all kinds of non-procreative sexual practices, from bestiality to heterosexual oral sex to homosexual anal sex. As a legal matter in America, prior to 1900, it was almost exclusively used to prosecute sexual assaults that did not involve penile-vaginal insertion, one of the legal requirements for a rape charge. It was also incredibly rare. According to William Erskine’s Dishonorable Passions: Sodomy Laws in America, 1861–2003, in 1880 there were just sixty-three people imprisoned on sodomy charges in the entire country, only five of whom were in New York.
However, late-Victorian urbanization created the right circumstances for the emergence of what we might call a proto-queer community in cities around the country. Booming cities meant more jobs (especially ones that were disconnected from birth families, which had previously been the main economic unit in America), more social privacy, more interaction with people with different cultures and sexual mores, and more opportunities for individuals to discover queer desires, both in themselves and in others. Pre-existing sodomy laws became one of the main avenues by which the emerging community of men with same-sex desires would be policed, and eventually, “the twentieth-century use of the law tied nonnormative sex to a homosexual status group.” In this way, “sodomy” and “gay sex” became synonymous. Between 1901 and 1905, Donovan writes, an average of sixty-five people per year were arrested on sodomy charges in New York City alone, a huge increase over the 1800s.
In the year 1903, thirty-four of those men were arrested in a single incident: the raid on the Ariston Baths, a private bathhouse that catered to a gay clientele on certain nights. The Ariston was a place for men to meet other men, and its numerous small rooms offered many opportunities for public or semi-public sex.
On February 22nd, the baths were infiltrated by undercover policemen, who took copious notes on the activities of the individuals inside. Around 1 am, a larger force of uniformed officers raided the baths and placed everyone under arrest. In the resulting trials, defense attorneys used a two-prong strategy: first, they asserted that the police had been mistaken in what they had seen, and second, they tried to build a compelling respectability defense that showed that their client could never have committed what one lawyer called an accusation “more serious than a charge of murder in the first degree.” One defendant asserted that as a non-English speaking immigrant, he had no idea what went on in those sorts of places. Another called an ex-girlfriend to the stand to testify to his (heterosexual) character, while a third – a prominent architect – called many high-powered business colleagues. Prosecutors, on the other hand, tried to focus attention on the most disreputable or unseemly parts of the police reports, via “testimony about disgusting language, interracial and same-sex sexual relations, the wearing of sheets as skirts, having multiple sex partners, and the open casualness of it all.”
For the most part, at least judging by the transcripts Donovan was able to examine, the juries in the Ariston Bath cases believed the police – though they made a special plea to the judge for leniency for the defendant who didn’t speak English. The trials hinged on questions of what was morally, as well as physically, possible. Could two men have anal sex while standing up? Could a prominent businessman with a wife commit the “crime against nature” with another man? Increasingly throughout the Progressive Era, juries – and America as a whole – were coming to realize the answer to both these questions was a resounding yes. Sodomy was no longer a kind of forced sexual assault; it was beginning to be any sex between two men.
At its heart, Respectability on Trial is a long series of similar duels between competing narratives about respectability and disreputability. In the long run, Donovan’s point is that it doesn’t matter which side won or lost any particular trial, but that by debating ideas of what constituted appropriate gendered behavior, these trials helped to redefine acceptable manhood and womanhood in the early 20th century, while simultaneously leaving us a record of the moment when those definitions were in flux.