From a quantitative viewpoint, a commonly accepted belief that emerged around the same time as the modern state is that decreases in population are linked to increases in decadence, and conversely, increases in population are linked to increases in the well-being and strength of the populace (Thomas Hobbes, Montesquieu). This “proof” of decadence thus became an integral element of nationalist and pro-birth agendas, encouraging the
criminalization
of homosexuality. But Bentham contested this idea, arguing that the threat posed to population increases by relationships between men was baseless.
In addition, homosexuality has frequently been considered a (decadent) secondary stage of life (for the individual as well as for the collective), following a first stage that is neutral or positive. The dichotomy between innate and acquired, as well as primary and secondary, is underlined by the cultural reference to original
sin
: good is primary and evil is secondary. Opposed to this interpretation, German sexologist Magnus
Hirschfeld
participated as an expert witness in many criminal trials involving homosexuals in
Germany
at the beginning of the twentieth century, and was one of the first to support the idea of homosexuality as innate. In most of the trials, he was beneficial in getting defendants acquitted by invoking the homosexual’s lack of responsibility, but after a series of high-profile cases involving prominent statesmen, his influence waned and his theories became less accepted (or even outright rejected) in the face of arguments that homosexuality is acquired and thus a product of decadence, correlative to the
degeneracy
of power.
Further, the approach that understands decadence to be the result of the transgression of norms is not simply about reinforcing the validity of a homophobic society, but rather reforming a society that is not sufficiently homophobic, thus closing a fissure between the present and the future.
This type of allegation began near the end of the Middle Ages, developed under the influence of
Protestantism
, and then was reintroduced by the thinkers of the seventeenth and eighteenth centuries. Those using this argument challenged the inner workings of political and Catholic religious structures as well as the validity of the reigning monarchy, alleging a social and political sterility that needed to be replaced by a new type of society.
As a result, religious organizations, monasteries, and convents in particular, found themselves targeted. Martin Luther criticized the Catholic Church by alluding to the homosexuality of the clergy and monks, and frequently drew the association between Rome and
Sodom
. This controversy became a central point of debate between Catholics and Protestants; the argument found strength in the words of authors of the Enlightenment (Voltaire, Gervaise de Latouche, Diderot), who condemned homosexuality as the behavior of a certain caste of French nobles and men of the cloth who were cloistered away from society, thus contributing to the myth of the homosexual in court and convent.
The hypothesis of a homosexual elite within the clergy and the nobility implied that its members were concerned with simply serving their own interests instead of those of society. The principal goal of this hypothesis was to destabilize their political legitimacy based on the idea that their sexual practices were selfish and thus corrupt, evidence of their own decadence as well as that of society. At the heart of this theory was the perceived failure of the elite’s collective responsibilities which needed to be countered in order for society to achieve moral rectification; such means ranged from criminal laws targeting homosexuals to attempts at destroying the elite by way of extraordinary penal measures or even revolution.
—Flora Leroy-Forgeot
Albert, Nicole.
Saphisme et décadence dans l’art et la littérature en Europe à la fin du XIXe siècle
. Thesis under the supervision of Jean Palacio. Paris: Sorbonne-Paris IV, 1998. New edition: Martinière, 2005.
Aron, Jean-Paul, and Roger Kempf.
Le Pénis et la démoralisation de l’Occident
. Paris: Grasset, 1978. New edition: Le Livre de Poche, 1999.
Boswell, John.
Christianisme, tolérance sociale et homosexualité
. Paris: Gallimard, 1985. [Published in the US as
Christianity, Social Tolerance, and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century
. Chicago: Univ. of Chicago Press, 1980.]
Laurent, Emile.
La Poésie décadente devant la science psychiatrique
. Paris: Maloine, 1897.
Leroy-Forgeot, Flora.
Histoire juridique de l’homosexualité en Europe
. Paris: Presses universitaires de France, 1997.
Lever, Maurice.
Les Bûchers de Sodome, histoire des “infâmes.”
Paris: Fayard, 1985.
Tamagne, Florence.
Histoire de l’homosexualité en Europe, Berlin, Londres, Paris, 1919–1939
. Paris: Le Seuil, 2000. [Published in the US as
A History of Homosexuality in Europe: Berlin, London, Paris, 1919–1939
. New York: Algora, 2004.]
Servez, Pierre.
Le Mal du siècle
. Givors: André Martel, 1955.
—Against Nature; Contagion; Debauchery; Degeneracy; Gide, André; Literature; Perversion; Philosophy; Rhetoric; Sodom and Gomorrah; Sterility; Theology.
DECRIMINALIZATION (France)
France was the first country to abolish sodomy as a crime. In effect, those responsible for both the Revolutionary Code of 1791 and the Penal Code of 1810 determined that it was no longer expedient to maintain the criminalization of homosexuality as had been the case under the Ancien Régime. The justifications for this change of heart were varied; these included the push for secularization of the
law
, the liberal
philosophy
of the Enlightenment, and the incrimination only of those behaviors that were deemed a threat to the
family
. But while French law since that time has never criminalized relations between consenting adults of the same sex, criminal judges since the middle of the nineteenth century nonetheless encouraged the stigmatization of homosexuality, which was entrenched in legislation by the Vichy regime in 1942; it would not be until the early 1980s that the last of these discriminatory measures disappeared.
Around 1850, criminal jurisdictions began to re-interpret the Code, finding ways around those areas of law where the text was vague (indecent assault, enticement of minor to
debauchery
) in an attempt to legally isolate what could be called “homosexual
perversion
” and thus specifically condemn it. This
jurisprudence
, supported by the Court of Cassation (the main court of last resort in France) until the 1930s, was assigned the mission—even at the risk of abusing the legal principles behind the specific crimes and punishments—of filling in the “blanks” of a legal system that, it claimed, did not sufficiently protect minors from “perverts” (as homosexuals were designated according to medical standards).
During the latter half of the twentieth century, homophobic politicians took over from judges in presiding over this trend, continuing efforts to repress homosexuality wherever it could. While they determined that French law would still not incriminate relations between adults of the same sex, they were also confident that the same law would concern itself with moralistic jurisprudence, confirming the “abnormality” of homosexuality that was dangerous to society. A law was passed by the Vichy regime on August 6, 1942 under the guise of protecting society against prostitution, but the underlying intent was to repress homosexual acts. Henceforth, anyone who “committed one or more immoral or unnatural acts with a minor under the age of twenty-one, in order to satisfy one’s own passions” would be punished with a jail sentence of six months to three years.
The post-war years in France did not put an end to this legislative trend; quite the contrary, in fact. During the Liberation, relations between an adult and a minor of the same sex were reevaluated by the government, and punishments for the crime were increased. At the same time, the age of sexual consent for heterosexual relations was set at fifteen years of age, but twenty-one for homosexual relations (decreased to eighteen years of age in 1974). On July 30, 1960, the National Assembly passed a law that added homosexuality to a list of
fleaux sociaux
(“social plagues”)—which also included alcoholism, prostitution, and diseases such as tuberculosis—that the government was charged to combat. Later that same year in November, another law was passed that expanded the scope of sexual offenses and established as extenuating (and as a result, doubling the punishment) those circumstances where the offense was the result of “acts
against nature
committed with a person of the same sex.”
It would not be until the beginning of the 1980s that a shift began to take place. During the debates on modifications to the laws criminalizing rape and indecent assault, the National Assembly agreed to abrogate the increased penalty for sexual offenses when it involved homosexuals; during the debates, those in favor of this move argued that it was time, given the evolution of social mores. But the difference between the ages of sexual consent would remain in place, despite heated debates that took place between 1978 and 1980 in the National Assembly; the argument for the necessity of protecting youth in particular from these “acts against nature” won out.
France’s presidential elections of May 1981, in which the left assumed power under presidential candidate François Mitterand, gave hope to gays and lesbians given Mitterand’s campaign promises to abolish all measures that discriminated against homosexuals. At the end of 1981, parliamentary debates over the difference between the ages of sexual consent were once again intense; they revealed that the issue was not so much potential relations between adults and minors as it was homosexuality itself, specifically the fear and hatred it evoked in the imaginations of certain individuals. To them, maintaining these interdictions in the law was a means of permanent and symbolic social reprobation designed to “discourage” a sexuality they considered abnormal.
The law of August 4, 1982 finally reestablished equality in the criminal code by no longer categorizing any relations between an adult and a minor under the age of fifteen as homosexual or heterosexual. After the removal of sodomy as a crime in 1791, the elimination of the last legal text stigmatizing relations between individuals of the same sex signaled the complete decriminalization of homosexuality in France. In addition, this achievement, which established an official respect for fundamental rights concerning sexual orientation, completed the transition of homosexuality’s place in French society from marginalization to one in which true sexual liberty was recognized.
This process of decriminalization has led to a progressive
criminalization
of homophobia, specifically the introduction to the penal code of “behaviors” deemed discriminatory as a result of drawing distinctions between individuals: from this point on, any refusal to furnish a good or a service, any refusal to hire, or any layoff motivated by homosexuality would be punishable by fines or even prison terms. But the shift from the incrimination of homosexuality to that of homophobia is far from complete. On one hand, the prosecution of cases involving homophobic
discrimination
are problematic given the victim’s difficulty proving the accused’s intent to discriminate; further, there are far more insidious discriminatory practices against homosexuals that not covered by the criminal code. More recently, a law was passed that served to reduce the burden of proof and introduce the concept of “indirect discrimination,” but this applies only to cases involving employment. However, another victory occurred in 2004, when the National Assembly adopted legislation making the
insult
of homosexuals illegal, potentially resulting in year-long prison terms for anyone found guilty of the crime.
Moreover, on May 17, 2008, as requested by Louis-Georges Tin, the founder of the International Day Against Homophobia, the French government decided to bring forth a declaration to the UN General Assembly for the universal decriminalization of homosexuality.
—Daniel Borrillo and Thomas Formond
Borrillo, Daniel, and Pierre Lascoumes, eds.
L’Homophobie:
comment la définir, comment la combattre
. Paris: Ed. Prochoix, 1999.
Danet, Jean. “Le Statut de l’homosexualité dans la doctrine et la jurisprudence française.” In
Homosexualités et droit
. Edited by Daniel Borrillo. Paris: Presses universitaires de France, 1997.
Leroy-Forgeot, Flora.
Histoire juridique de l’homosexualité
. Paris: Presses universitaires de France, 1997.
Mossuz-Lavau, Janine.
Les Lois de l’amour (les politiques de la sexualité en France 1950–1990)
. Paris: Payot, 1991.
—Against Nature; Criminalization; Discrimination; Insult; Jurisprudence; Medicine, Legal; Mirguet, Paul; Philosophy; Symbolic Order.
DEGENERACY
The theory of degeneracy (or degeneration) was formulated by the French psychiatrist Bénédict-Auguste Morel across several works during the mid-nineteenth century. It was based on an etiological hypothesis surrounding the gamut of mental illnesses (in the broadest sense of the word, covering all diseases described during that era as “nervous,” which included epilepsy as well as myopathy), and extending to other pathologies, such as pulmonary tuberculosis and syphilis. The theory’s main posit was the existence of a morbid heredity that is manifested in the form of a sickness or a kind of behavioral aberration, becoming increasingly frequent as it descends the genealogical tree, leading to the “degeneration” of the family line.
Ignoring Mendelian theories on
genetics
, the theory of degeneration postulates that a grandfather’s alcoholism, a maternal aunt’s hysteria, a cousin’s myopathy, or an individual’s homosexuality could all be related as part of a “heredity of defects.” The theory was influential far beyond the medical field; the literary works of Emile Zola attest to its importance in the attitudes at the end of the nineteenth century. Though a little lax in its scientific formulation, this theory was easily integrated into the new data on human genetics, after the fashion of Darwinism or the “rediscovery” of Mendel’s laws.