Sex & Sin in Sheboygan

Sheboygan, Wisconsin. The name of the town is borrowed from the name of the river that winds through it. Sheboygan, an Algonquian word, means a passage connecting two bodies of water. It also means a hollow bone. When Sheboygan was a village, its inhabitants called it "the mouth." The Sheboygan River rises in the hills only a short portage away from Lake Winnebago and flows north and then bends eastward, and on the shore of Lake Michigan halfway up the Wisconsin coast at the river's mouth lies the city of Sheboygan. It is not a picturesque city, but it is located in a picturesque place. Kettle moraines, hills with kettle-shaped holes ground out between them by the Lake Michigan glacier, mark the land westward, and in the winter the river freezes like a miniature glacier to break at the shore line jaggedly into the huge unfrozen lake. Indians fished here and steamboats docked pioneers to settle the wilderness West. Yankees came to girdle the trees and grow corn. Germans came to escape religious and political persecution and settled and started dairy farming and built exercise halls. Serbs and Croats came to work in furniture factories and mills. Yugoslavs came, and Lithuanians and Luxemburgers and Russian Jews. Fourierist utopians such as those who founded New England's Brook Farm came and established a short-lived socialist colony, a phalanx, but their crops failed and reluctantly they moved on.

Sheboygan is possessed of two other picturesque distinctions. Its main industry today is a toilet-and-bathtub factory. And, although it is a city of only 48,484 people, it annually prosecutes more adults for fornication, adultery and lewd and lascivious behavior than any other city in the United States. (Detailed records in these matters are scarce, but all available evidence suggests the statement is true. Sheboygan police investigated 118 cases in 1971 of class-two sex offenses, excluding rape. In 1967, the only year for which a statistical breakdown is available, Sheboygan arrested 35 people for adultery, 27 for lewd and lascivious behavior, 11 for fornication, ten for intercourse without consent, four bigamy and one for sexual perversion. In contrast, New York City has prosecuted two people for adultery and none for fornication in the past 50 years; Boston in 1966 reported six arrests for fornication and seven for adultery.)

A few years ago, a young man named Jim Decko came to Sheboygan. He had been an exceptional student. He was an exceptional athlete. The Sheboygan school system had hired him to direct the city's extensive public-recreation program. It was a responsible job. Decko supervised more than 200 part-time employees, and because he was outgoing and handsome and athletic, people in Sheboygan soon came to recognize him on the streets of the city. He played semipro football. He was married to a beauty queen and had two small daughters, but the marriage wasn't going well. Decko began to look around. He met a girl and started divorce proceedings. He got the divorce.

Wisconsin winters blow long and cold. Decko shared an apartment with his girl. Stories of convictions for cohabitation turned up in The Sheboygan Press alongside stories of robberies and record snows. A police captain lived next door, and the sister of a detective down the hall. Decko moved out but continued to visit on weekends. Someone whispered into a phone. The young director of public recreation got a call and drove to the police station down town.

Cohabitation is a crime in Wisconsin, as it is in many other states. The crime is defined insection 20 of chapter 944 of the Wisconsin Criminal Code. The chapter is titled "Crimes Against Sexual Morality" and the section, "Lewd and Lascivious Behavior." The law provides:

Whoever does any of the following may be fined not more than $500 or imprisoned not more than one year in county jail or both:

(1) Commits an indecent act of sexual gratification with another with knowledge that they are in the presence of others; or

(2) Publicly and indecently exposes a sex organ; or

(3) Openly cohabits and associates with a person he knows is not his spouse under circumstances that imply sexual intercourse.

The first clause protects the public from swingers and live sex shows, the second, from exhibitionists. The third is less precise. "Circumstances that imply sexual intercourse" is a phrase that requires of law officials an act of imagination. For example, the presence of 15 adult males, a German shepherd and a tin whistle in the home of a matron would not imply sexual intercourse, though the dog often barked and the whistle often blew, if the home were a licensed boardinghouse. The presence of a man in a woman's apartment overnight would, if they were known not to be married to each other. The statute does not forbid sexual intercourse. It forbids two people from "openly" behaving as man and wife. Wisconsin maintains the creature comforts of home and hearth under license and treats failure to obtain that license as a crime.

To establish that Jim Decko was behaving lewdly and lasciviously, the Sheboygan Police Department observed the behavior of the lights in his girlfriend's apartment and the behavior of his car. On August 27, 1970, Sheboygan police officers Frederick Zittle and Howard Durow filed a report:

"The area of -- -- -- -- -- -- -- -- -- -- was checked periodically during the night and this blue Ford, license R96-240, was parked at this location throughout the night."

The following night, Officer Durow and Officer William Eichmann filed a similar report. Other reports chronicled times when the apartment lights were on or off. From such facts the Sheboygan police could draw rigorous conclusions.

In 1970, the Sheboygan Police Department apprehended four windowpeepers, a fact mentioned prominently in its annual report.

Two detectives interviewed Decko. They asked him if he stayed overnight at the apartment. They asked him what the sleeping arrangements were. Decko answered some of their questions and evaded others. He asked the detectives what they thought to be logical hours. He asked if he could visit the apartment at all and they said yes. He asked how late he could stay and they said, well, 12 or one o'clock. The exchange reminded him of college. He said that after he left the station he felt ridiculous. He felt as if he had been placed under curfew. He continued to visit the apartment, but surreptitiously, leaving his car at home. Sometimes his amused friends, galvanized by the quaintness of a challenge to young love, dropped him off. Two weeks after Decko's interview, he was issued a summons and his world fell apart.

He was a talented and successful young man. He had been an all-state linebacker. His job required enthusiasm and a good measure of skill. When he was summoned by the state he should have been angry, but instead he was mortally afraid. Later, some would remember that he seemed a man inordinately concerned to please. He opened car doors for ladies and wrote "I love you" in the white Wisconsin snow.

When he got his summons, he called the Sheboygan chief of police, a man named Oakley Frank, and arranged to talk it over. He said, Look, I've been in this town a long time. What can we do? Can we keep this out of the paper? Can we settle this out of court? Chief Frank said he had come too late. He said he would like to help Decko, but the matter was no longer in his hands. He said he had the problem of the people who had encouraged him to prosecute. He said that if he didn't prosecute he would get the entire department in trouble.

Oakley Frank doesn't love the press. It hasn't done him honor. He consented to an interview reluctantly. He is a stocky man with graying hair combed back from the temples. He has a heavy face and a firm, forceful voice. He grew up in the same neighborhood I did in Kansas City, Missouri. That is most of what I know about him, except that his signature, printed on his glowing annual reports, is surprisingly immature for a man of his age and position, the letters round as babies' eyes and drawn without conviction leftward and vertically and leaning right. I asked Chief Frank if I could use a recorder to take notes. He said I might not have any notes to take, so I left the recorder off. One of his men entered the office then and sat beside me, a silent witness.

Chief Frank said that Sheboygan had been maligned. In 1968, The Wall (continued on page 186) Sex & Sin In Sheboygan (continued from page 130)Street Journal, in a story about renewed enforcement of archaic sex laws, possibly as a way of harassing welfare recipients and student activists, cited Sheboygan as a notorious example. A British journalist saw the story and went to Sheboygan with good cheer to set the record straight. He returned home and filed a story for one of London's dailies headlined "Sheboygan: town of Peeping Toms." Chief Frank didn't like that kind of treatment, especially since he had gone down to the office on a Sunday morning to give the man his interview.

In fact, said Chief Frank, his department never aggressively ferrets out consensual crimes. His police investigate only when such cases are dumped on their doorstep. The cases result from citizen complaints. His job is to enforce the law, and if such laws are not enforced elsewhere, he doesn't see how other cities avoid enforcement. He suspects that blame for Sheboygan's record, which he believes to be less exceptional than some have claimed, lies with the legal profession. He believes Sheboygan lawyers encourage their clients to bring morals charges to beef up their divorce cases. The boys down in Madison, in the state legislature, ought to change the law, Chief Frank said. There's a difference, he believes, between the kind of man he called John Q. Lunchbox, down at the factory, who is arrested for lewd and lascivious behavior and pays his $35 fine and goes back to the factory a hero, and a doctor or schoolteacher or police officer who is similarly arrested and pays his fine but has his career ruined. I don't think that's justice, said Chief Frank. I think that's injustice.

But Jim Decko flaunted his situation. The sister of a detective lived in the same building, the chief said, and a police captain lived next door. By his behavior, Decko held them up to ridicule. We told him this couldn't go on, said the chief, but it went on anyway. Chief Frank also said that Sheboygan is a good place to raise a family and he intended to keep it that way.

Stung by Frank's refusal to negotiate, Decko submitted his resignation to the Sheboygan school board and left for the weekend. When he got back, he found his picture on the front page of the newspaper under the headline "'Rec' Director, Decko, Resigns." The lead said that he had been charged with a morals offense. One of the first things he did that day was shave off the mustache he had been growing and have his sideburns shortened and his hair cut.

The Sheboygan County district attorney had jurisdiction in Jim Decko's case. His name is Lance Jones and he is an elusive man. He has been known to speak to the press, but he doesn't take calls from Playboy. He is not yet 30, is single and lives at home. He is an "active" district attorney who likes police work and rides with the patrol cars whenever he can. He is believed to show promise of a considerable political future in Wisconsin. After Decko had been charged with lewd and lascivious behavior, his attorney, Peter Bjork, appealed to District Attorney Jones to consider amending or dismissing the charges to avoid destroying Decko's career. Jones responded with a formal letter to the judge who would hear the case and carboned "all law-enforcement agencies." The letter said that lewd and lascivious charges were not negotiable and would be fully prosecuted. The letter angered Bjork, and he responded with a letter to the judge that described Lance Jones sarcastically as "savior of the morals of Sheboygan County." Bjork said that henceforth he would enter a plea of not guilty for every client charged with a consensual sex crime and would insist on a jury trial. "If the district attorney's office has nothing better to do," Bjork wrote, "than to play around with this sort of matter, it apparently has plenty of time to clog up its own office and the court's docket by trying all cases to conclusion." In fact, in 1969, faced with a heavier-than-usual load of consensual sex cases, Jones had reduced most of them to charges of disorderly conduct. With the Decko case, and without giving any reason for his decision, Jones inaugurated a new and more punitive policy of full prosecution--a policy, Jones's decision made clear, that was optional and arbitrary.

Decko left town, first to Chicago and then to Los Angeles. In L. A., encouraged by Bjork, he agreed to fight the case. The Playboy Foundation offered financial support. Bjork filed a legal brief in Sheboygan County Court that supported a motion to dismiss the Decko charges on the grounds that they were unconstitutionally vague and overbroad and violated Decko's right to privacy. Judge John G. Buchen, county judge of branch number two of the Sheboygan County Court, soon denied the motion. In his opinion, the laws in question were clear to common understanding and applied to a specific kind of behavior. He noted that the constitutional right to privacy is subject to the law, including Wisconsin's lewd and lascivious law. The defendants, Judge Buchen wrote, "see nothing wrong in their alleged conduct and therefore [feel] they should not be subject to any criminal penalty. If this is the position taken by these defendants and others of the younger generation, their remedy is through the legislature, not the courts. It should be remembered that the legislature reenacted the lewd and lascivious statute in its present form in 1955 in the general revision of the criminal code of Wisconsin.

"The state of Wisconsin," Judge Buchen concluded, "has a legitimate interest and duty to uphold moral dignity and general welfare of its citizens, and what constitutes conduct harmful to such public interest is for the state legislature to decide.... A state law may not be invalidated on due-process grounds because [it] may be unwise, improvident or out of harmony with a particular school of thought."

Judge Buchen's father was an attorney and a Wisconsin state senator. He studied history in college under the famous historian Frederick Jackson Turner, who revolutionized the study of American history at the turn of the century by proposing that the advancing Western frontier made Americans the civilized and democratic people they are. Gustave Buchen took up Turner's implicit challenge and late in life published privately a history of Sheboygan County. He thought the county had a past "as colorful and romantic as can be found anywhere," but that today "farms, towns, schools, churches and factories ... provide the comforts of life and the amenities of civilization where only raw and untamed nature had since the dawn of time held sway." Gustave Buchen is dead, but his face and his political name live on in his son, whose eyes shine as bright and whose hair is cut as close above the ears.

The present Judge Buchen was Sheboygan County district attorney during the Fifties, when the county was notorious throughout Wisconsin for its whorehouses. "There was quite a hullabaloo," Judge Buchen told me in his chambers on the fourth floor of the county courthouse. "The League of Women Voters and other do-good organizations were getting quite irate about the number of houses of ill fame. I remember seeing an article in a Minneapolis paper pointing out that Sheboygan County was the place to go. I didn't run on any ticket of reform, but there was a growing feeling that Sheboygan County wasn't very proud of its reputation. Busloads of college kids used to come up from Madison. So I did start an investigation with the help of what were then called state beverage-tax agents. We raided the houses several times and finally brought padlock proceedings. It took practically a year to get rid of them. But as district attorney, other than in that area of morals, I didn't prosecute except where necessary. I'm sure the cases of adultery and fornication and lascivious conduct I did prosecute were very isolated. The increase in prosecutions came after my time. For what reasons I don't know. More and more of these cases were investigated and prosecuted. Once something like that starts, successor district attorneys can't very well stop it. I'm sure there aren't many communities where some neighbor can call up the police department and say, 'I've seen his car out there night after night, I know she's separated from her husband but not divorced,' and get the police to investigate. I remember when I was district attorney, if somebody came to me with a complaint like that--usually it would be a wife who suspected her husband--came to me like that without proof, I'd say, 'If you don't want to live with him, get a divorce, this is grounds for divorce, this is your personal problem, not a community problem.' Most prosecutors take that point of view. In the first place, you've got enough crime that you're concerned about without ferreting out this type of thing."

Judge Buchen's belief that consensual sex crimes are relatively harmless is probably reflected in his usual fine for such crimes, $35 and costs, about as stiff as a fine for speeding. But in the Decko case, he was not willing to carry his belief further and throw the law itself out of his court. "I wasn't about to declare the statute unconstitutional. I wish Pete had taken that up to the Supreme Court. If I'd said it was, unconstitutional, it wouldn't mean it was, except for the purposes of the case. If I had said so, it would have resulted in the dismissal of the case. No one would have been able to bring any more cases of that kind in my court. Wouldn't prevent them from going to some other court. We have three county courts and a circuit court that have almost identical jurisdiction." Judge Buchen was elected, not appointed, to office. You can imagine, in Sheboygan County, where they closed down the whorehouses only yesterday but where cohabitation is still a living crime, what an opponent might have to say if Judge Buchen took a firmer stand.

In California, Decko wasn't faring well. No work in recreation turned up, possibly because prospective employers were checking back with the Sheboygan school board, possibly because California is a veritable outdoor gymnasium of recreation directors at least as well qualified as Decko was. He went six weeks without a job before accepting a position as a salesclerk, and he lost that job because he cashed a customer's bad check. In some desperation he became a night guard at a factory, and one night, brooding over his decline, he drove to a town an hour from Los Angeles and parked in a parking lot and slashed his wrists. The police found him before he bled to death and returned him to L. A. With some encouragement, he committed himself to a mental hospital but stayed only a few days and then checked out. When the police found him again, he had taken a bottle of tranquilizers and had passed out on a beach. He wanted no more institutional group therapy. When he had slept off the tranquilizers, he got in his car and drove to Ohio. Home.

A movement is abroad in Wisconsin to clear the books of consensual sex laws, and gambling and prostitution laws, too. A year ago, Governor Patrick J. Lucey appointed a Citizens' Study Committee on Offender Rehabilitation. That committee recommended removing criminal prohibitions among consenting adults for gambling, fornication, adultery, "sexual perversion," lewd and lascivious behavior, lewd, obscene or indecent matter, pictures or performances, and prostitution. State attorney general Robert W. Warren takes issue with the committee's recommendations. "The repeal of our criminal statutes [in these matters]," he told a meeting of the Wisconsin district attorneys' association, "in no way improves criminal justice. It in no way represents a disciplined or professional response to social problems." Whatever that means. Warren found the idea of repealing laws against prostitution "most shocking of all." The report said that legal prostitution would protect prostitutes from criminal exploitation. Warren cited a "kidnap-torture-prostitution ring" recently uncovered in Madison to prove his contention that prostitution is a sordid business not deserving of legal protection.

A Wisconsin circuit judge ruled this year that the Wisconsin law that finds only female prostitution illegal is not discriminatory against women. "No one but a female can be a prostitute," Judge W. L. Jackman of the Dane County Circuit Court wrote to explain his decision. "The female alone is capable of the repeated and indiscriminate intercourse which makes prostitution a profitable occupation." In fact, of course, male prostitutes service far more clients in an average night than female prostitutes do.

Jim Decko got a job managing a department in a Penney's store in Toledo, and for a time seemed to be recovering from his depression. He wasn't. He was quietly going mad. After a party on Halloween night in 1971, he cut himself up some more, tore a gas stove off a wall and swallowed another bottle of tranquilizers. Friends recommended treatment. He wanted no more treatment. He said he knew that after treatment his life would never be the same--which is the point of treatment, but he didn't see that point. He wanted his life to be the same as it had been before Sheboygan, before he was publicly branded a criminal for a crime for which he had not yet been tried. He had been a successful person. He wanted to be successful again. Penney's fired him for lack of initiative.

Ray Schrank is a Madison attorney. He was assistant district attorney in Sheboygan when the Decko case came up. Lance Jones was his immediate superior.

"I think both Lance Jones and Oakley Frank had the attitude that they would enforce the law," Schrank says. "If someone called them, they would send someone out. If a case came up, it would be investigated and charged. I don't think [the Decko case] had a high priority with Lance. I suspect the reason for enforcing the consensual sex laws is to get convictions. Most people who are charged on a morals charge will plead guilty, so you get a lot of convictions. Eighty percent convictions. That looks good. If they get 80 percent convictions from arrests, that looks very good and that makes them feel like they're doing a job. It makes the police look good when they apply for funds, when they apply for more officers, when they apply to the city or for Federal funding. And morals charges are easy to get convictions on, because, first of all, so many people when they're arrested are probably guilty and, second of all, they're embarrassed by their arrest and so they plead guilty and get a $35 fine or something like that and they'd just as soon get out of the court and not have anybody else know about it rather than drag it on. Plus, because it's a misdemeanor, these people do not have the right to court-appointed counsel. Consequently, unless they can afford an attorney, they aren't going to get an attorney into the picture who's going to challenge the state either on the facts or on the law in general. And so it's kind of like disorderly conduct. The police use it because they know they'll get a conviction on it.

"I think Sheboygan is a very bigoted town," Schrank concludes. "They can say, Well, if people are violating the law, then they ought to be prosecuted, but I assume if they were violating that law, they wouldn't want to be prosecuted for it. When you have people like that who aren't hurting anybody and you destroy their lives, you aren't fulfilling your role. The court's not fulfilling its role. Nobody's fulfilling his role. Because people's lives are being destroyed for no reason at all."

Late in November, Jim Decko got hold of a gun and walked out into a city park one night and fired one shot into the air, perhaps to make sure the gun worked, perhaps halfheartedly hoping someone would hear it and save him from himself. But no one came, no one would save him, and after a while, breathing despair, overwhelmed by grief, emptied at last of everything except dread, he turned the gun around and squeezed the trigger and shot himself to death. His body lay all night face down in the snow. The police found it the next morning. He died innocent even of a victimless crime. The charge against him was never tried.

Sheboygan didn't kill Jim Decko, but it is implicated in his death more than accidentally. Suicide, self-murder, comments violently on every experience the suicide has had of joy and sorrow and love and hate and indifference, back all the way to the nipple and the womb. Like a contract torn in anger, it shreds across the large print and the small. But because it is a sickness, and because it is constructed not of present pain but of past experience, it is not inevitable. Decko might have lived. The immediate focus of his conflict was Sheboygan's capricious decision to select him for public humiliation. All his life his distorted inner voice had warned him to be a good boy. When he tried to be a man, looking for his own way, that voice sounded forth again in the voice of the community where he lived and thought he had earned respect. Sounded forth with considerable cynicism, by the way, and even now the principal officials in the case pass the buck. Many believe the consensual sex laws are wrong. Jim Decko thought he was wrong. Sheboygan rejected him. Perhaps sensing his despair, employers rejected him. Toward the end, his terrified girl rejected him. By then his anger had become pathological, and to control that anger and also to release that anger, he destroyed the only world he dared destroy: himself. And stilled his inner voice, but stilled his human voice, too, forever.

Decko's case isn't even typical of Sheboygan. A law so banal that it is used to fatten police statistics ought to protect the public from banal behavior, and, by and large, that is what Wisconsin's consensual sex laws do. A typical Sheboygan case on the books involved a couple living together in a trailer near the outskirts of town. The woman called the police because the man had been beating her. The police arrived, discovered that the two weren't married and charged them both with lewd and lascivious behavior. They pleaded guilty and were each fined $35 plus court costs.

Judge Buchen described another case to me, a low comedy. A Sheboygan woman on the outs with her husband picked up two men in a bar and, as the judge put it, "shacked up with them in the back of their car" and then was driven to her home, where she "shacked up" with them again. While the men were taking turns with the woman, they took turns relieving the house of her husband's gun collection. The police stopped the men because of the guns in their car; an adultery charge followed when they made their confession.

In both cases, the police stumbled onto the crime. That much, at least, is unusual about them, because the usual lewd and lascivious investigation in Sheboygan is initiated by a tip from a neighbor or a relative. The tip leads the police to conduct their own investigation, thereby relieving the tipster of the distasteful democratic necessity of confronting the accused.

A law that butts into private lives and sunders them with public humiliation is squalid enough, but Wisconsin's lewd and lascivious law is even more squalid, because it isn't really designed to stop cohabitation: It is designed to spare the sensibilities of neighbors who might better spare their sensibilities simply by minding their own business. The act of imagination required of police is also required of informers, who must construct, from the dim form of a parked car or the wink of a light going out, those unmarried bodies joined in criminal lubricity, and must wrench that construction across emotions of outrage and disgust, and then swell up indignantly and call the police. And people who can abuse themselves that way are the kind of people the laws encourage.

The consensual sex laws in the United States are backward and bizarre. Most of us agree on that by now. They enjoin behavior that even our churches, no avant-garde in such matters, have approved within the conjugal bed--and sometimes without it. They criminalize behavior that harms no one, and therefore they encourage blackmail, including the blackmail of one spouse by another at divorce proceedings. Even more dangerously, they stand on the books as an invitation to officials to use them to harass minorities: welfare recipients, blacks, activists, all those with whose opinions or life styles the officials do not agree. That is part of what happened to Jim Decko. Says Ray Schrank: "I think one reason Lance Jones issued against Jim Decko was because he could then say, 'Look, I'm not just going after the little people, I'm going after the big people.'"

As in every city where the police use consensual sex laws for their own purposes, Sheboygan's enforcement of its laws is capricious. Even the most conservative application of Kinsey statistics to a city the size of Sheboygan indicates that far more people must be breaking the law than are caught. That is true of most kinds of crime, but people convicted of burglary or robbery may at least be assumed to have done some actual harm to someone else's property or person. Victimless crime does have its victims: the accused and their families.

Nothing is right about Sheboygan's enforcement of the consensual sex laws, not the laws themselves, with their pious horror of nonprocreative physical love, not the encouragement the laws' enforcement gives to self-righteous Peeping Toms, not the embarrassment or hardship or worse that capricious enforcement inflicts upon the laws' victims, not the cynical and despicable use of convictions to lard police and prosecutor statistics, and not the damage done to the tradition of law itself when it is used, as it has been used by state legislatures, to impose religious sanctions upon all of us whether we like them or not.

Sheboygan has made itself notorious, and the lesson of that notoriety ought not to be lost on us. Laws in the hands of unscrupulous men, and laws in the hands of men with so many scruples they would like to visit them upon us all, are never dead letters. So long as they are on the books, they can be revived and enforced. No politician dares take a stand in favor of premarital sex or homosexuality or cunnilingus, nor should he presume to, those matters being private. But every politician ought to take a stand in favor of our right to privacy, a right that consensual sex laws violate. It is a right that is eroding in the United States of America. It is a right that is finally the source and the support of all other rights. Without it we would live looking over our shoulders like retreating thieves, and that is a way no man can live. Not Jim Decko, not I, and not you.

Note: In many states, the violations must be proved to be "Open and Notorious."

* Effective January 1, 1973, consensual sex between adults is legal under the revised Penal Code.

**Key: a. Oral intercourse (fellatio, cunnilingus)

b. Anal intercourse

c. Sex with animals

d. Sex with the dead