District Attorney Declined to Prosecute Abominable Crime

The Crime-that-Cannot-Be-Named

From my point of view, when a district attorney at some time in the past declined to prosecute a sodomy charge, that was a good thing. It's a good thing that consensual sodomy can no longer be prosecuted. In October 1869, the Washington, D.C. District Attorney declined to prosecute two charges of sodomy.[1] My cursory research turned up that the accused were both well known to the authorities, with charge for various acts of assault or theft attributed to each of them. Further, the news reports made it clear that the two charged were black, and it seems that their alleged victim was as well.

The two were charged separately, but the alleged incidents were on the same date. Each, according to the charges, committed sodomy “upon” on Roy Washington, on August 23, 1869. I am assuming that the “upon” means that Mr. Washington was the receptive partner for either oral or anal sex.[2]

The newspaper, the National Republican, helpfully supplies the specific of the charge, sodomy, because they quote the actual words, and this is “an abominable crime (not to be named among Christians).” So they named it.[3]

The District Attorney declines to prosecute further in the following cases:
Randolph Cole, for sodomy upon Roy Washington. In that on the 23d of August did he in the city of Washington “commit an abominable crime (not to be named among Christians) as to the great displeasure of Almighty God, and to the great scandal of all human kind.”
James Burnett, for sodomy upon Roy Washington on the 23d of August.

Both of them “upon” Mr. Washington. Just a few days after the alleged acts of sodomy, Mr. Cole and one James Bennett were arrested for assault and battery. In 1870, the Evening Star describes Randolph Cole and another confederate as “two notorious black thieves.” Cole shows up on a larceny charge (theft of $86 of butter) and was sent to the penitentiary for 30 months. Assault with a knife in 1899.

As for James Burnett, he was accused of being involved in a robbery on June 23, 1868 (also reported in the National Republican). He would be accused of theft of tobacco in 1869. On March 1, 1870, the Evening Star reported that James Burnett “is charged with assault and battery and with intent to kill.” In 1872, not long after he was fined $3 for assault, Mr. Burnett was at the center of a disturbance at a social gathering. The Evening Star of April 30, 1872 has the details.

Last night a colored[4] club gave a ball at American Hall, on D street, between 12th and 13th streets, during which it is alleged that James Burnett assaulted one of the women—Hanna Barber—and some members of the club attempted to quiet the disturbance. Burnett then drew a knife and threatened to cut any one who came near him, and while he was slashing around, Richard Lewis received a sever cut in the left side of his neck. Officer Doane arrested Burnett, and a charge of assault and battery, with intent to kill, was preferred, and he was committed to jail for a hearing.

Burnett died on December 4, 1872, at an approximate age (according to the Evening Star) of twenty-six. Three years earlier, at the time of the incident with Mr. Washington, he would have been about twenty-three. He died while struggling with a police officer. There were other men of the name, and the Evening Star article doesn’t mention the sodomy charge among the many blemishes on the record of Mr. Burnett. However, I think we have our man.

Even with a known death date, I don’t seem to be able to turn up anything definite about Mr. Burnett. Even less so for Mr. Cole. There does seem to be a Roy Washington, and he would have been about seventeen or eighteen in 1869. He was probably the same Roy Washington who was arrested at a disorderly gathering on August 15, 1869 (just a few day before the alleged sodomy incidents).

With the lack of hints about the age of Randolph Cole, I’m going to assume that all three were within a few years of each other. And that just leaves the mystery of why the D.A. declined to prosecute. I’m going to guess that too late for the charges to be altered, they found that Mr. Washington was a completely wiling partner to this, either through desire or finances, which would leave the question of who they should be prosecuting. This is, however, pure speculation on my part. It is clear that, unlike some of the early stories about sodomy trials, we’re not going to find a nascent gay identity.

Instead, it’s just a glimpse in to the lives of African-Americans of the poorest class in the Washington, D.C. area, in the first few years after the Civil War. And although the D.A. did not prosecute, maybe something did happen between Mr. Cole and Mr. Washington, and Mr. Burnett and Mr. Washington. Maybe it’s a slight unclear glimpse into the sexual lives of the era.

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1. Some of you may be wondering, “what happened to Esperanto and stuff like that?” They’re still topics. In the last few days, however, the stories I’ve found that have caught my attention have been these tales of sodomy prosecutions. Fear not, there are plenty of Esperanto and Volapük stories to come. And more sodomy ones too.  ↩
2. Once again, either count.  ↩
3. If the courtroom were full of Jews, would it be okay to name the “abominable crime”? Just asking. And what does this say of the staff and readership of the National Republican?  ↩
4. There’s a part of me that just wants to edit out this stuff. The sex stuff is fine, but the racism is icky.  ↩