Homosexuality in France Part 2

Tuesday 14 March 2017.
 

.Laws

Even though in France there was no legal prohibition of homosexuality, it was still not socially acceptable. Two ways in which the French law regulated homosexuality were statues that condemned public offenses against decency and which made it a crime to corrupt young people.

“There have been no anti-sodomy laws in France since 1791, but in the legal imagination pornography and homosexuality were so inextricable that anti- obscenity law, as we have seen, was used to censor material with homosexual content, as well as to repress homosexual sex acts as violations against decency.” (Dean, The Frail Social Body Pornography, Homosexuality, and Other Fantasies in Interwar France, p.131)

“In the new Penal Code, approved by the Constituent Assembly in September 1791, there was no reference to Ancient Regime laws on sodomy, and this lack of any mention of crimes against nature might be read as tolerance of homosexuality.” (Copley, Sexual Moralities in France 1780-1980, p. 24)

“In the autumn of 1791 the French Constituent Assembly promulgated a new penal code abolishing the criminalization of sodomy, a decision confirmed by the Napoleonic Penal Code of 1810. Since 1791 same-sex relations between adults have been illegal in France.
The significance of the decriminalization of sodomy should not be overemphasized. The issue was never specifically debated by the assembly, and the decision was probably a fortuitous consequence of the general project to secularize the legal code by eliminating offenses like blasphemy, heresy, and sacrilege that were seen as relics of religious superstition.”
(Jackson, Living in Arcadia Homosexuality, Politics, and Morality in France from the Liberation to AIDS, p. 20)

“Unlike prostitution, there was no legal regulation of sodomy per se because the Constitution Assembly in 1791 had abrogated Old regime laws concerning crimes against nature. Nevertheless, police continued to arrest men suspected of sodomitic solicitation under the Penal Code of 1810: Article 330(which condemned public offenses against decency) and Article 334 (which made it a crime to corrupt young people). Public concern about and private titillation over sodomy had grown since the Enlightenment with the emergence of sodomitic subcultures and the proliferation of pornography. In eighteenth-century Paris, undercover agents (known as mouches and pederasty patrols) had entrapped suspected sodomites.” (Rosario, The Erotic Imagination French Histories of Perversity, p.72-73)
“In fact, it was the Constituent Assembly of 1789-91 that abrogated French antisodomy laws in 1791, and Napoleonic legislation merely incorporated this previous reform. Moreover, Napoleon’s government never showed itself particularity tolerant of homosexual activity. Determined to enforce the highest moral standards in France, Napoleonic officials sometimes ignored the inconvenient fact that the law no longer penalized crimes against nature. Whenever they deemed unconventional sexual behavior a threat to public morals, they did not hesitate to take repressive action against pederasts and sodomites.” (Merrick & Ragan, Homosexuality in Modern France, p. 80)

“In fact, the legislators never provided any explanation for this omission, which they even debated. Enlightenment philosophy may have guided the legislators, but it is more likely that the decriminalization of sodomy was simply a fortuitous and unforeseen consequence of their secularization of criminal law.” (Merrick & Ragan, Homosexuality in Modern France, p. 82)

“The Constitutional Assembly actually voted two distinct law codes in 1791. The Penal Code of 1791 (25 September-6 October) covered felonies, that is, series offenses, punishable by more than two years in prison and tried by a jury in the criminal courts. The Code of Municipal Police and Correctional Police, more commonly known as the Law of 19-22 July 1791, covered misdemeanors, that is, lesser offenses tried without the benefit of jury by judges in the correctional courts.” (Merrick & Ragan, Homosexuality in Modern France, p. 82)

“The Penal Code of 1791 included no sex crime other than rape, which French jurisprudence defined as a crime whose victim was necessarily a female. On the other hand, the Law 19-22 July 1791 dealt with public offenses against decency and alluded very indirectly to same-sex sexual relations. Chapter II Article 8 declared,
Those accused of having committed a gross public indecency, by a public offense
against the decency of women, by unseemly actions, by displaying or selling
obscene images, of having encouraged debauchery, or having corrupted young people
of either sex, will be immediately arrested.”

(Merrick & Ragan, Homosexuality in Modern France, p. 82-83)

“In sum, legislation adopted during the Revolutionary and Napoleonic period did not outlaw pederasty and sodomy in and of themselves. It merely criminalized sexual assault, public offenses against decency, encouragement of debauchery, and corruption of young people of either sex.” (Merrick & Ragan, Homosexuality in Modern France, p. 83)

“The Napoleonic code, which from 1810 was the legal instrument for France (and Holland, Belgium, and Italy) laid down no penalty for sodomy or homosexual acts. The code punished only rape, child molestation, and public outrage to bonnes moeurs (indecent behavior), preferring in matters of sexual comportment the same guiding principles that fueled the civil rights agenda of the Declaration of the Rights of Man, to wit: All that is not expressly forbidden by the law is permitted. More out of a consistent vision of the role of law than for any other reason, no statutory emendations were made respecting homosexual behavior until a mild law under Vichy in 1941. What rights might discontented homosexuals claim in an atmosphere of such legal forbearance?” (Nye, The History of Sexuality in Context: National Sexological Traditions, p. 392-393)

“From the time of the shaping of the criminal code in the Napoleonic era, French lawmakers had been reluctant to overturn the libertarian dimension of the code that permitted (any) sexual activities between (any) consenting adults, unlike nineteenth-century legislation elsewhere in Western Europe that sought to ban unnatural sexual relations carried out in public or in private. Providing they carried out their lovemaking in private, French homosexuals did not have to dread arrest or scandal until the Vichy regime, though even then the law of 1942, extended by the DeGulle government after the war, targeted only pedophiles by raising the age of consent to twenty-one.” (Merrick & Ragan, Homosexuality in Modern France, p. 231)

“One paradox of France, then, was that a more liberal legal context engendered a more conservative, and inhibited, medical approach to homosexuality than in Germany.” (Jackson, Living in Arcadia Homosexuality, Politics, and Morality in France from the Liberation to AIDS, p. 26)

Sexology in France

In the late nineteen-century a new field of medicine and science was just beginning, sexology. Some of the leading advocates for this new field were homosexuals themselves.

“To an extraordinary extent early sexology was associated closely with movements aimed at sexual reform, in particular efforts to abolish or revise harsh laws outlawing homosexual behavior. In some cases, men who were themselves homosexuals among them Magnus Hirschfeld in Germany and Edward Carpenter in England initiated these movements, combing political activity with efforts to gather and disseminate enlightened medical knowledge on homosexuality.” (Nye, The History of Sexuality in Context: National Sexological Traditions, p. 390)
“Robert A. Nye outlines a number of geopolitical, demographic and cultural factors to explain the privileged status fetishism occupied in French psychiatry in the 1880s and 1890s. These factors correspond to what Foucault describes as the ‘socialization of procreative behavior’, and include cultural anxieties about the size, health and quality of the population, which was shrinking at that time, as well as ‘long-term concerns with reproductive fertility, male impotence, and sexual exhaustion’. However, Nye’s argument illuminates only why French doctors were concern with non-reproductive sexuality as such; it does not explain why fetishism rather than homosexuality or sadism should have become the master perversion. (Schaffner, Modernism and Perversion Sexual Deviance in Sexology and Literature 1850-1930, p. 80)

“Despite the existence of a number of shared assumptions that united sexologists across national borders, there were significant differences in national sexological traditions prior to 1914, indicative of the extent to which national political concerns shaped scientific research agendas. In France, anxieties about a declining birth-rate led sexologists to cast the perversions, especially homosexuality, as deviations from, and threats to, heterosexual norms that needed to be bolstered as a matter of national urgency. Sexology in Germany and Austria was increasingly associated with movements of sexual reform, especially aimed at abolishing or revising the laws against homosexuality.” (Waters, Sexology, p. 44- 45 in Palgrave Advances in the Modern History of Sexuality editors H. G. Cocks and Matt Houlbrook.)

“Whilst the field of French psychiatry, into which early sexology was embedded, was shaped by more general processes related to the advent of industrialization and secularization, such as bureaucratization, professionalization and a growing scientistic belief in the explanatory power of biological models, the demographic concerns relating to waning fertility rates as well as political anxieties about the loss of military power in the ongoing French-German rivalry were some of the factors that led to the emergence of a distinctively French tradition of sexological writing.” (Schaffner, Modernism and Perversion Sexual Deviance in Sexology and Literature 1850-1930, p. 63-64)

“Unlike its German and British counterparts, French sexology was never tied to activism and legislative change, but instead ’put special emphasis on a familialist ethic and stressed the centrality of reproductive fertility. At least in part, this can be explained by the fact that, in contrast to the situation in most other European nation states, homosexuality was not outlawed under the Napoleonic Code”. (Schaffner, Modernism and Perversion Sexual Deviance in Sexology and Literature 1850-1930, p. 63.)

“Many French sexologists tend not to differentiate as strictly between the aim and object of the sexual drive as their European colleagues: what counts for them is above all the departure from the procreative aim as such. Another specificity of the French sexological discourse is the predilection to classify all perversions under a single nosological entity, a ’master perversion’ such as inversion in the case of Jean-Martin Charcot and Valentin Magnan, and fetishism in the case of Alfred Binet.” (Schaffner, Modernism and Perversion Sexual Deviance in Sexology and Literature 1850-1930, p. 64-65.)

“Many ensuing French sexological theories were predominantly materialist-biological in outlook, focusing on the anatomical-neurological origins of perversion.” (Schaffner, Modernism and Perversion Sexual Deviance in Sexology and Literature, 1850-1930, p. 66)
“I think there are three major reasons for the unique trajectory of French sexology. The first may be formulated as an irony.
The Napoleonic code, which from 1810 was the legal instrument for France (Holland, Belguim, and Italy) laid down no penalty for sodomy or homosexual acts”
(Nye, The History of Sexuality in Context: National Sexological Traditions, p. 393)

“Second, the French after 1860 or so were experiencing an extraordinary slackening of their birth rate, so that by the late 1880s their population had virtually stopped growing, in contrast to the burgeoning demographic expansion elsewhere in the industrialized west.” (Nye, The History of Sexuality in Context: National Sexological Traditions, p. 393)

Third, in 1870 the French experienced a major military defeat by the Prussians and watched helplessly as a huge and demographically vigorous new nation took shape on their eastern frontier.” (Nye, The History of Sexuality in Context: National Sexological Traditions, p. 393)

Homosexuality and Psychiatry in France

“As this summary of medical writings demonstrate, the dominant experts in the field were French or German (even if the word inversion was invented by the Italian Arrigo Tamassia in 1878). Although French and German writers shared much in common, their approaches affected by the different national contexts.” (Jackson, Living in Arcadia Homosexuality, Politics, and Morality in France from the Liberation to AIDS, p. 24-25)

“In France medical experts operated in a difference context. First, homosexuality was not illegal, and as we have seen, many believed that the law was too liberal. Second, French elites were increasingly preoccupied with the physical degeneration of the race-especially the fear of alcoholism, syphilis, and TB.” (Jackson, Living in Arcadia Homosexuality, Politics, and Morality in France from the Liberation to AIDS, p.25)

“Three years earlier, in 1882, Magnan co-authored an article entitled ’Inversion du sens genital’ (Inversion of the Genital Sense) with Jean-Martin Charcot (1825-1893), the famous chief physician at the Salpetriere hospital, founder of modern neurology and inventor of hysteria, with whom, amongst many others, Freud, Binet and Proust’s father had studied. . . . Charcot and Magnan use ’inversion’ as a master trope for a sexual instinct that has gone astray, fixating itself on inappropriate sexual aims. They explain inversion as a pathological state produced by hereditary factors, and emphasize repeatedly that ’inversion of the genital sense’ lies at the heart of all sexual perversions - it is the explanatory key not just for homosexuality, but also for cases of sexual obsession with white aprons, night bonnets or boot nails.” (Schaffner, Modernism and Perversion Sexual Deviance in Sexology and Literature, 1850-1930, p. 68)

“In France, Brouardel, Lacassagne, Chevalier and Raffalovitch studied homosexuality. Raffalovitch published a major work in 1896, Uranism and Unisexuality. Nevertheless Jean Martin Charcot (1825-1893) and Victor Magnan (1835-1916) were the first Frenchmen to abandon the criminal model of homosexuality in favor of a medical and pathological model. They authored the first publication on the subject, "Inversion du sens genital et autres perversions sexuelles," initially published in numbers 7 and 12 of the Archives de neurologie in 1882. Their theories were still being discussed in the inter-war period.
French psychiatrists looked at sexual inversion primarily as it related to hysteria, and homosexuality was studied only in relation to neurosis; this bias skewed their conclusions in an inevitably perverse and pathological direction. Homosexuality was only an isolated symptom of a general disorder, "degeneracy.”
(Tamagne, A History of Homosexuality in Europe Berlin, London, Paris 1919-1939 Volume I, p. 212)

“An all-important shift in attitudes towards homosexuality came with the new approach of psychiatric medicine, above all with the work of Drs Charcot and Magnan, a shift from a criminal model for the homosexual to a pathological one.” (Copley, Sexual Moralities in France 1780-1980, p.135-136)

“In terms of aetiology, the psychiatrists were firm advocates of heredity over environmental factors. They wrote of an innate predisposition, some physiological impulse in the brain, which would sooner or later be triggered off by some external phenomenon.” (Copley, Sexual Moralities in France 1780-1980, p.139)

“Psychoanalysis saw itself in the morally neutral tradition of nineteenth-century positivism. Freud himself can be quoted as seeing homosexuals as neither criminal, nor sick. Yet psychoanalysis, nevertheless, defined homosexuality as a neurotic condition.” (Copley, Sexual Moralities in France 1780-1980, p.151)

“Finally, unlike Krafft-Ebing or Albert Moll, who assiduously expanded, updated and re-edited their major works, the majority of French psychiatrists wrote only a single article or monograph on the subject.” (Schaffner, Modernism and Perversion Sexual Deviance in Sexology and Literature, 1850-1930, p. 65)
“My primary contention in this essay is the following: that the concept of fetishistic perversion first arose in French psychiatry and was only later integrated into psychiatric nosologies elsewhere, including that of Sigmund Freud, where is his historical investigation will terminate. But why France? I hope to explain how a pressing cultural anxiety about the health and size of their population provoked the French to consider how and why fetishistic deflections of the sexual instinct occurred. I hope to show how long-term concerns with reproductive fertility, male impotence, and sexual exhaustion influenced the status fetishistic perversions possessed in pre-World War I psychiatry.” (Nye, The Medical Origins of Sexual Fetishism, p. 14 in Fetishism as Cultural Discourse edited by Emily Apter and William Pietz.)

“French psychiatrists turned their interest toward the perversions; about the same time psychiatrists did so elsewhere; and as was the case in England, Austria, Germany, homosexuality seems to have been a primary driving force in the creation of new nosologies. But the outcome of this process was markedly different in France. No medical champions of male love appeared, and the medical characterizations of it were qualitatively different and characterized by far less generosity. Rather than try to provide a lengthy narrative of these developments - as I have already done elsewhere (Nye 1989b, 32-51). I will summarize the main points of contrast between the psychiatric treatment of homosexuality in France and other countries.” (Nye, The History of Sexuality in Context: National Sexological Traditions, p.398)

“First, French sexology remained firmly committed to the model of degeneracy, which had become something of a native medical tradition by the 1890s (Pick 1989, 37-108; Nye 1974, 141-170).” (Nye, The History of Sexuality in Context: National Sexological Traditions, p. 398)

“A second point of contrast is that psychiatrists insisted on measuring the sexual perversions as departures from a procreative sexual norm, thus grounding sexuality in sex and recognizing no distinction between aim and object (Nye, 1989a, 65-66).” (Nye, The History of Sexuality in Context: National Sexological Traditions, p.398)

“Third, by viewing sexual inversion as a fetishistic perversion, French psychiatrists invariably considered inverts to be lacking in normal quantum of masculine genital sexual energy. Thus effeminacy – whether considered in terms of hermaphroditic genital stigmata, underdeveloped secondary sex characteristics, or feminine attitudes or gestures became clinical evidence for the condition.” (Nye, The History of Sexuality in Context: National Sexological Traditions, p.399)

“Finally, French psychiatrists were so sensitive to the implication of homosexuality and perversion in their nation that they invariably presented the problem as a cultural crisis of grave proportions.” (Nye, The History of Sexuality in Context: National Sexological Traditions, p. 399)

“I will consider three final medical themes that suggest the uniqueness of the French conception of the homosexual, and carry the consideration of homosexuality into the 1920s and 1930s.” (Nye, Masculinity and Male Codes of Honor in Modern France, p.116)

“First is the persistent reluctance of French medicine to distinguish between sexuality; and sex Arnold Davidson uses the Oxford English Dictionary to date the use of the first appearance of the word sexuality; in English, a usage which first appears in 1879 in a British gynecological textbook. The first use of sexuality in the modern; sense in French is identified in Le Grand Robert and the Grand Larousse as 1924, both in reference to Freud’s Three Essays, which first appeared in French the year before.” (Nye, Masculinity and Male Codes of Honor in Modern France, p.116)

“Second, one might have well expected the growth of a French psychoanalytic movement to have popularized Freud’s new conception of sexuality, but even here the story before 1945 suggest more continuity with the older views than conversation to the new.” (Nye, Masculinity and Male Codes of Honor in Modern France, p.116)

“Third, lest us consider homosexuality in Greek antiquity as a touchstone for European sexologists. French medical commentators could not bring themselves to adopt a relativistic perspective, despite a French tradition of admiration of antiquity in no wise inferior to other European countries.” (Nye, Masculinity and Male Codes of Honor in Modern France, p.116)


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