Between 25th September and 6th October 1791 a seemingly momentous event happened – a new Penal Code was introduced into France which included the first apparent decriminalisation of homosexuality and sodomy.
Don’t get too excited
about that. The Penal Code also apparently decriminalised bestiality and
incest. In practice what actually happened was that these and homosexuality
were removed from criminal “offense against nature” laws and were transferred
to civil law under the non-specific “violations of public decency”.
Sodomy wasn’t even debated
when the Penal Code was being formulated and it seems an oversight on behalf of
the French Revolutionary government who introduced it. As a result sodomy,
homosexuality and male same-sex activity wasn’t even mentioned in the Code. The
only sexual offences mentioned were rape, sexual assault, child molestation,
prostitution and adultery. That meant that it implied all other sexual activity
was not illegal.
Even though homosexuality
was not an offence possessing, displaying or distributing homosexual literature
and art was. Unlike heterosexual art and literature the homosexual equivalent
was classed as pornography and included in the “violations of public decency”.
Also, even though the age of consent for sex was 11 years in France at the time
any homosexual activity involving a child under 21, even in private, was
classed as child molestation and, likewise, a “violation of public decency”.
As a result the number of
prosecutions against homosexual men did not decrease as you would expect under
decriminalisation, but, as happened in England and Wales when homosexuality was
partially decriminalised 50 years ago this year, more gay men were charged with
offences than previously.
How did the Penal Code of
1791 come into being in the first place?
Throughout the 18th
century there was a lot of philosophical debate on just about everything that
the world took for granted - religion, science, morality, politics. It was the
time of the Enlightenment. The old way of things was on its way out and new
ideas were on their way in.
In France the distrust of
the church and monarchy was a breeding ground for new Enlightenment thinking.
Eventually both church and state were replaced after the French Revolution. The
National Constituent Assembly, which was formed to produce new laws for the
republic, led to many French philosophers to push for reform. Even though these
same philosophers found the idea of homosexuality utterly repugnant they
advocated that it was a natural act and should not be punishable by death.
The general feeling of the
French Republic founders was that everything under the old monarchy should be
replaced with something which reflected the new age. Just how much direct
influence the philosophers had on their decisions is a question of debate.
With the criminal laws
everything that reeked of “phoney offences, created by superstition, feudalism,
the tax system and despotism” was to be replaced. By superstition and despotism
they meant the Church and monarchy. Most of the sexual offences that were
previously regarded as criminal were re-classed as civil offences.
The absence of any
reference to sodomy, incest or bestiality in the Penal Code inferred that they
were thus decriminalised. This is why France has often been regarded as the
first European country to legalise homosexuality. But the Penal Code 1791 was
about reforming criminal offences, not civil ones, which were handled by local
authorities. It didn’t mean that homosexuality was tolerated or could not be
As I mentioned earlier
homosexuals were still being charged with offences which heterosexuals could
enjoy unhindered. During the next few years and into the Napoleonic era the
laws were more strictly enforced and the names of many men suspected of being
homosexual were listed by the police until the 1980s.
Whether France can indeed
claim its place as the first country to legalise homosexuality or not is a
matter of personal opinion. What we can say for sure is that France turned
sodomy from a criminal offence with the death penalty into a civil offence that
was enforced under the wide-ranging “violation of public decency”. In effect
turning it back to what sodomy was before the death penalty was introduced.
contributed a major part in the change of attitude towards homosexuality across
the whole of Europe. The Enlightenment began the moral debate on homosexuality.
The influence of its philosophers effected the way the new emerging nations
formulated their laws, including that of the USA. Unfortunately, the debate on
the criminality of otherwise of homosexuality is still very much a contentious
subject in many of those nations. Will it take a New Enlightenment for
homosexuality to be given universal equal status as heterosexuality?