French Enlightenment?

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 discriminated against.

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.

The Enlightenment 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?