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Homosexuality and Crime


The seeds of an alternative to the old order germinated in the Enlightenment, when scientific and humanist thinking, and a rediscovery of the ancient Greek legacy of democratic politics and aesthetics, grew into a countermovement to theocracy. Socio-economic changes occurring in the world system were, at the same time, undermining the aristocratic, landholding classes of Europe and the church that legitimized their rule. The French Revolution is perhaps the most central symbol of the modern social and cultural paradigm that swept aside church and aristocracy in the name of the right of the people to govern themselves rather than submit to the will of monarchs and bishops. The modern French state advanced the idea of the citizen with rights to self-determination regardless of origin or trait. Religion was dethroned from its hegemonic position, deprived of the tools to enforce its will on everyone, and privatized to the realm of personal belief. Everyone could have religion; they just did not have the right to force those around them to believe or to carry out the same moral agenda.

It is perhaps not surprising, then, that this liberal democratic revolution also initiated the disestablishment of sexual orthodoxy, permitting greater individual freedom, and extracting the state from the regulation of homosexuality. With the advent of the Napoleonic legal code, sodomy disappeared from criminal law, and as Napoleon swept through Europe evicting the mainstays of the old order, he left new nation-builders in his wake who founded legal systems without the category of sodomy. The modern world of most of western and southern Europe, as well as its territories (principally in Latin America), broke the medieval link between homosexuality and criminality in the early nineteenth century.

Germany, Britain, the United States, and their territories, who held out against Napoleon, remained unreformed for the next century or more. British elites reacted to the French Revolution with widespread crackdowns on dissidents and a wave of imprisonments of men for sodomy. When the German states united under the auspices of Prussia in the late nineteenth century, they retained the Prussian sodomy law, Paragraph 175, and in some instances overturned the decriminalization that had occurred in such component states of the new German empire as Bavaria and Hannover. One Hannover jurist, Karl Ulrichs, became a lifetime advocate against Paragraph 175 and was a precursor to the first organized gay and lesbian movement organization, the Scientific-Humanitarian Committee. Founded in Berlin in 1897, the committee worked for many years to overturn Paragraph 175 in Germany. During the late 1890s in Britain, the primary public event surrounding the criminal labeling of homosexuality was the show trial that condemned Oscar Wilde to two years of hard labor in Reading Gaol.

By the early twentieth century, European nations contained conflicting social forces advancing modern reforms and defending premodern traditions. Gay and lesbian public spaces, now evident in cities throughout the industrialized world, became vulnerable to predation by an array of police, clerics, physicians, moral entrepreneurs, and blackmailers, each with their own agenda. Gay and lesbian voices could only infrequently break through official censorship to participate in the public agenda, and often had to resort to oblique references in science, theater, and literature in order to communicate with each other and to the public. Only in Germany and the Netherlands was there a sufficiently open civil society for above-ground gay and lesbian organizations advocating for change.

With reactionary forces coming to power in Germany in 1933, the law became a tool used to strike out against Jews, national minorities, the disabled, religious dissidents, and homosexuals, with each group falling under criminal sanction and suffering genocide in the Holocaust. Russian Communism under Stalin moved in a similarly authoritarian direction, re-criminalizing homosexuality at a time when the Soviet state was inventing and destroying a wide range of supposed internal enemies. The end of World War II brought little solace to homosexual peoples, as the criminalizing states—most notably the Soviet Union, the United States, the United Kingdom, and the Federal Republic of Germany—showed little sign of reform or even initiated new campaigns of persecution against their gay and lesbian citizens. When ruling elites become fearful during times of national or international upheaval, criminal law is often a tool of repression directed against those imagined to be enemies of national identity and community. Just as Britain included homosexuals in its repression of dissidents during the French Revolution, the Cold War fed state searches for "traitors" and dissidents. In the United States, McCarthyism criminalized a wide range of people imagined to be the "un-American other" as "communists" driving many out of their careers and into exile. Again, among its fantasy enemies were homosexuals pursued as "security risks" and forced into jails and mental hospitals (D'Emilio). With the suppression of the early gay and lesbian movement in the Holocaust, the only alternative in the 1950s to the criminal paradigm was the medical view of homosexuality as sickness. While police and courts raided and jailed gay and lesbian meeting places, psychiatrists were busy promoting the redefinition of homosexuality as a psychopathology.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawHomosexuality and Crime - Cross-cultural Conceptions, Western Traditions, Modernity, Anglo-american Law Reform, The Global View