Workshop | Homosexuality and judicial archives : new perspectives for a history of sexualities (Europe, 18th-20th centuries)

This research workshop, to be held on November 22, 2024 at the Campus Condorcet in Aubervilliers, France, will explore new ways of writing the history of homosexuality using legal archives. It is open to all young researchers (doctoral students, young PhDs, authors of master’s theses) whose work falls within the theme.

Judicial material and the history of homosexuality: an encounter yet to come?

The history of homosexuality, a growing field of enquiry in French academia over the past 20 years, has developed a paradoxical relationship with judicial material. While the legal framework for sexual encounters has been a central issue in historical reflections, the sources of judicial activities themselves – court decisions, judicial files, and others – have been singularly absent from the first major surveys devoted to love and sexuality between women and men. As early as the 1990s,
historians expressed the ambition to write a “total” history, capable of embracing the various dimensions of the homosexual experience (Tamagne, 2000). To achieve this, they built up large corpora of sources, including the press, written and oral testimonies, cultural productions, medical and legal writings, private and associative archives as well as public archives such as those of the police, but always leaving judicial archives at a distance (Merrick, 1996; Peniston, 2004; Revenin, 2005; Jackson, 2009; Pastorello, 2009; Buot, 2013). Beyond the French case, this can also be found in major European monographs (Cook, 2003; Benadusi, 2005; Houlbrook, 2005; Vazquez Garcia, 2011; Beachy, 2014; Kurimay, 2020).

The absence of these sources in French historiography is not entirely surprising. The notion of homosexuality does not have the same consistency in the French legal system which, unlike several others, did not explicitly criminalize homosexuality after the abolition of ancient criminal offenses such as sodomy. In Germany, Great Britain, Austria and Scandinavia, on the other hand, homosexual acts became (or remained) explicit criminal offenses after the modernization of criminal laws in the
19th century (Kruber and Klaus, 2010; Weeks, 1977; Weingand, 2011; Rydström and Mustola, 2007).

In France, nevertheless, men and women in non-heteronormative relationships were subjected to criminal prosecution under a variety of laws. “Outrage public à la pudeur” (art. 330) was used to punish homosexual acts between adults in the public space or in the presence of witnesses. This offense did not only concern sexual acts between people of the same gender, but penalties were doubled in 1960 for such cases. In addition, the Vichy regime introduced in 1942 an offense (art. 334-
1) for sexual acts between a minor under the age of 21 and an adult of the same gender. This offense, retained in 1945 by the Provisional Government of the French Republic (art. 331-3), was not repealed until 1982 (Idier, 2013). Across Europe, in countries inspired by Napoleonic criminal law such as Spain and Italy, judicial repression was enacted based on articles of law which were not directly related to homosexuality, such as vagrancy or public indecency (Dall’Orto, 1987; Scurti, 2008; Gauthier and Schlagdenhauffen, 2019; Huard, 2016).

Thus, the justice system captured and recorded homosexual practices and experiences, whether or not they were explicitly criminalized in law. In France, as in other countries, this observation opens up new perspectives, which have been the focus of more recent research. These focus first and foremost on the repressive activity itself. In Northern Italy, a survey of trials for acts of lust in the early 20thcentury has recently been published (Reglia, 2020). In Germany, the judicial archive is used to account for the multiplicity of forms of repression and the variety of social situations it engendered under National Socialism (Zinn, 2018; Stroh, 2018). In Switzerland, Thierry Delessert has worked on offenses under the Military Penal Code for sexual relations between men in the twentieth century (Delessert,
2012). In the French case, Dan Callwood recently published an analysis of procedural files for homosexual acts with minors during the 1960s and 1970s (Callwood, 2023). In Spain, where research into the judicial field is expanding, Geoffroy Huard has published the procedural files which he investigated as an appendix to one of his books (Huard, 2016). This undertaking testifies to historians’ new attention to the judicial material itself, which becomes an object of study in its own right in the
era of the archival turn (Poncet, 2019).

Beyond the analysis of repression, judicial material offers other avenues for reflection. In fact, these sources have already proved their worth as tools for the social history of sexuality. Medieval and modern historiographies rely to a large extent on this type of sources (Steinberg, 2018), and the work of Anne-Marie Sohn (1996) shows their potential for the contemporary period as well. According to Sohn, judicial sources make it possible to write a social history of sexual practices as close as possible to everyday, ordinary life, going beyond the vision offered by the study of discourse alone – though that tradition has been crucial to the history of homosexuality since the work of Michel Foucault (1976). Yet this avenue of research has rarely been explored in contemporary studies of homosexuality.

Hence, whether we’re looking at the history of everyday homosexual life – from a social history perspective -, the history of conceptions, meanings and imaginaries of sexuality – from a cultural history perspective – or simply the history of the criminalization of deviant sexualities, judicial material seems to promise major renewals, which we hope to work on in this workshop.