Preliminary Programme

In all Yugoslav penal codes, starting from the creation of the State in 1918, until the decriminalization of male homosexuality in half of the socialist federation in the late 1970s, "unnatural fornication" was considered a form of illegal sexual behaviour. Yet, during this period there was never a legal consensus what this term actually meant, and which sexual acts it covered. At the beginning "unnatural" was every anal penetrative intercourse, regardless of the gender of the sexual partners involved, while most same-sex erotic non-penetrative contacts were not prosecuted. The underlying understanding of "unnatural fornication" in jurisprudence was guided by the old concept of sodomy.
As the medicalization of the legal discourse became more intense, stating in the late 1940s, the forbidden sexual act increasingly lost its relevance. In the socialist context, the legislator narrowed the space of "sexual unnaturalness", and during this process, the pre-modern distinction of natural as reproductive and unnatural as barren gradually dissolved. In the end, the question of whether or not anal homosexual act was actually against nature lost its importance. The powerful token of "unnaturalness" was now guided by medical definitions.
Therefore, in courtrooms, as shown by examples of sentences pronounced in Croatia, the definition of "unnatural fornication" was gradually expanded to encompass male homosexuality, understood not just as an act, but as a phenomenon that grasps the perpetrator's whole character, existence and body. The need to prove a concrete act of anal penetration became of secondary importance. What was more relevant was to establish whether or not a defendant was really a homosexual. In court sentences, homosexuality was regularly described as an inborn deviation or a psychological force that underlies same-sex sexual acts.
Consequently, what were on trial were no longer particular acts, but the condition of homosexuality and the homosexual as a social category. More often than not, the accused men were forced to recount their sexual past in great detail and identify themselves as homosexuals. All of this resulted in a homosexualization of "unnatural fornication" in Yugoslav jurisprudence. Such were the end results of the pathologization of non-normative sexual practices and secularization of socialist society. The traditional "sexual morality" was pushed out of criminal law, and substituted with medicine and psychiatry, more influential than ever before in their newfound role of covert moral regulators. (Show less)

The Austrian law criminalized sexual acts between persons of the same sex generally until 1971. When the Austrian Criminal Code was issued in 1852, the term ‘homosexuality’ had yet not been invented, and medical science was just about to take interest in the phenomenon of same-sex sexuality, whereas in 1971, ‘homosexuality’ was considered a mental disorder by international standards (World Health Organization, International Classification of Diseases). The “pouvoir symbolique de nomination” (Pierre Bourdieu) had shifted. The respective article of the law, however, remained unchanged for the entire period. § 129 I b of the Austrian Criminal Code from 1852 which was reformed in 1971 defined as a crime: “Fornication against nature, this is […] with persons of the same sex” (Austrian RGBl. 117/1852). Thus, the law used century-old categories to classify sexual acts between persons of the same sex – “fornication against nature” and “sodomy” were synonymous terms in the Austrian legal tradition. Medical science, however, challenged these categories, and legal practice had to react.
My presentation is going to focus on the juridical practice of dealing with sexual acts between persons of the same sex in 20th century Austria, asking what influences medicine had on the jurisdiction. ‘Sodomy’/‘unnatural fornication’ and ‘homosexuality’ are understood, thereby, as two distinct interpretative models of different disciplinary provenience. A clear distinction of these two models will show that the jurisdiction made use of medical advancement in this field, on the one hand, and restrained medicine, on the other hand, when its supremacy of interpretation was challenged at court. I am going to argue that ‘sodomy’ was the dominant interpretative model of the jurisdiction until sexual acts between persons of the same sex were decriminalized in Austria, and even further on, until the last regulation of the Criminal Code which discriminated same-sex sexual acts from others was abolished in 2002. Finally, this perspective also aims to contribute to the theoretical debate on the cultural production of sexual categorizations. (Show less)

According to Bavcon, the leading legal expert in post-war Slovenia (at the time one of the six republics of Yugoslavia) decriminalization of homosexuality in 1977 occurred as part of a larger legal reform of the Criminal Code. The reform, which primarily aimed as criminalization of marital rape, was the result of both (socialist) legal theory, which increasingly adopted liberal positions in relation to one’s sexual life and intimacy in terms of limiting the role of the state in interfering into private consensual sexual acts, as well as the effect of resounding (Western) studies on homosexuality, which slowly created a pathway for de-patologizing same-sex relationships in the seventies. It does not mean that homosexuality was seen as something consistent with the socialist regime: in the examined court cases judges often explicitly stated that homosexuality hampers the development of socialist society. Nevertheless homosexuality was increasingly understood as a private matter and was decriminalized in 1977.

The paper is based on the analysis of original archive material consisting of unnatural fornication court case documentations from the Archives of the Republic of Slovenia and from Historical Archives Ljubljana and on an interview with the main actor of the Criminal Code reform. On the basis of these material we want to suggest that the juridical mechanism together with police surveillance and the blackmailing potential in every citizen created some kind of “heteronormative panopticon” over homosexuality, which led to an automatic self-control over one’s homosexual body and creation of specific homosexual subculture(s). On the other hand the available data does not allow for a conclusion that post-war Slovenia systematically persecuted homosexuals and systematically abused the “unnatural fornication” offence as a pretext for politically motivated court trials. (Show less)

Our study focuses on the background of the decriminalization of consensual homosexual acts between adult men in the 1961 Hungarian Penal Code by using recently discovered original archive material from 1958. We want to illustrate how otherwise “unsolvable” social issues can be solved by medicalization, i.e. rendering them under medical (in this case psychiatric) authority.

Examining penal codes is a tangible aspect of socio-historically changing views on homosexuality because criminal laws tend to sanction breaches of norms that are (or are perceived to be) widely accepted in society. Consequently, criminalization of certain acts or activities can be interpreted as signalling the emphasized significance of certain social norms, in this case, heteronormativity. By examining the changing theoretical and practical interpretations supporting the (de)criminalization of homosexuality can highlight that already in the mid-20th century medical references were crucial in legal and social decisions regarding homosexual people and their relationships in Hungary (and elsewhere).

The presentation introduces the changes proposed by the Neurology Committee of the Health Science Council (HSC; “Egészségügyi Tudományos Tanács”) in 1958 leading to the HSC’s unanimous support for a proposal to decriminalize unnatural fornication between consenting adults and to the actual decriminalization of homosexuality (i.e. decriminalization of consensual sexual acts between adult men) in 1961. The empirical base of the present study includes recently-discovered archival records of the National Archives of Hungary and other original documents. (Show less)