Towards a Gay Communism

by Mario Mieli

  In 538, Justinian prescribed torture, mutilation and castration for homosexuals; the capital punishment of beheading with a sword, already imposed for adultery, was subsequently extended to ‘sodomy’ also.30

  And yet under Justinian, a homosexual, even if he had confessed, was only beheaded if, after already being arrested once, he had shown evidence of persisting in his ‘aberrant practices’, thus refusing to submit to the rigorous canonical penitence imposed the first time. This apparent ‘lenience’ was however made up for by the fact that anyone could be accused of ‘sodomy’. The most suspect evidence of a child or slave was sufficient to condemn a man to infamy and death, such that ‘pederasty became the crime of those to whom no crime could be imputed’ (Edward Gibbon).31 In two successive edicts, Justinian defined homosexuality as a ‘diabolical and unlawful lust’, warning his subjects to abstain from such ‘immoral and disgusting activities, which are not even committed by animals’. Evidently the emperor saw what it suited him to see, or perhaps he really had never seen two male dogs fucking. Justinian saw himself as the instrument of the ‘just anger and revenge of God’ against those ‘guilty of sodomy’, who, with their ‘crimes’, ‘have provoked famines, earthquakes and pestilences’ …

  Equally severe and harshly repressive laws against homosexuality were issued in the following centuries, backed by the full weight of civil and ecclesiastical authority, from the early Middle Ages through to the French Revolution (and even beyond).

  The Lex Visigotha condemned ‘sodomites’ to castration, harsh imprisonment, and, if they were married, the immediate confiscation of their goods in favour of their sons or other heirs.

  Besides castration, this code also provided for the death penalty. The Danes, for their part, condemned ‘sodomites’ to be burnt (Jura Danica), while the Capitulari Franchi of Angesiso and Bendetto Levita called for the death penalty for male homosexuals, as it did for those guilty of incest and having sex with animals (bestialitas or sodomia ratione generis). A later Capitulari issued by Louis the Pious, king of the Franks and emperor (778–840), confirmed the punishment of burning for these ‘crimes’, drawing on Roman law.

  According to these Capitulari, homosexuality was at this time most widespread among the Spaniards, Provençals and Burgundians, and this induced the legislators to recommend a rigorous application of the penalties provided for, in order that the ‘unnatural vice’ should not too gravely contaminate other peoples.

  With the passage of time, homosexuals in some cities were no longer burned alive, but rather hanged in the public square and then killed with the sword (this was the case in many Italian cities, including Milan, Bologna, Aviano, Ferrara, Rome, Trieste, Osimo, Collalto, and in Valtellina). The ‘crime of sodomy’ was included among the list of offences for which torture was permitted during the trial, with a view to extracting a confession from the accused and his ‘accomplices’.

  Instead of being burned alive or hanged, homosexuals from the nobility were instead generally beheaded, with the loss of all their feudal privileges, which could not be handed down to their heirs. And yet it is a well known fact that many aristocrats or well-off commoners managed to buy their way out by paying large sums of money to potential informers, or to the public authorities, making themselves liable to constant heavy blackmail.

  In general, if the accused were less than eighteen years of age and their offence was limited to the ‘passive role’, then instead of being condemned to death, they were punished with the lash, long terms of harsh imprisonment, branded, or else, as in Spain and Sicily, sent to the galleys either permanently or for a long period.

  The statutes of Tarvisius, ‘with a spectacular sense of the macabre’ (d’Avack), provided that ‘a man [guilty of sodomy] is to be stripped of all his clothing in the public street, and impaled to the stake by a nail through his member, and remain there a full day and night; on the next day he is to be burned outside the city. A woman is to be stripped of all clothes and bound to the stake, and remain there a full day and night, on the next day she is to be burned outside the city’.32

  It is clear, then, that lesbians were no less horrendously persecuted. Even later, the celebrated criminologist Prospero Farinacci (1544–1618) noted how he had seen ‘several women who had offended in this way’ burned in Rome.

  Persons suspected of homosexuality were often punished atrociously even when there was no direct evidence of their ‘guilt’. In Venice, one man accused of ‘sodomy’ in 1282 was condemned to the loss of both eyes, even though the court had not succeeded in extracting a confession.

  In Tuscany, where homosexuality was very widespread, persecution was somewhat less harsh, since – in the judgement of certain jurists of the period – if the death penalty were imposed for every ‘crime of sodomy’, then the whole country would be covered with stakes and gallows. In Lucca, all the same, capital punishment was decreed for ‘active sodomy’, the ‘passive’ partner being condemned to a lesser penalty, though in Florence only recidivist homosexuals, caught in flagrante delicto for the second or third time, were condemned to the stake.

  According to several historians and chroniclers of the time, homosexuality nevertheless became ever more widespread in Italy, particularly after the Black Death of 1348. Perhaps because, between the risk of catching plague and that of ending up burned at the stake, more people were prepared to risk the punishment in order to enjoy themselves before they died. At all events, statutes from around this time multiply and harshen still further the repressive provisions.

  In Milan, during the 15th century, homosexuals were branded on the forehead. This is why, at a later date, people who wore a fringe that covered their forehead were called ‘sodoma’, and the fringe a ‘copneulo’ (ass-cover).

  In the following centuries, the penal code remained substantially unchanged, ‘and it was more or less identical throughout both Italy and the other European states, as can be seen from the statutes of Bologna (1561), Ferrara (1566), Milan, Rome, the Marches, etc. in the seventeenth century, the Florentine Bandi of 1542, 1556 and 1669, the Sicilian Prammatiche of 1504, the criminal codes of Charles V and Maria Theresa, the Portuguese Ordinanza Regia, the Spanish Nova Recopilation, etc.’33

  In the Middle Ages, the persecution of homosexuals stood in close relation to the repression of heresy: ‘heresy and homosexuality became one and the same thing’ (Szasz).34 According to Westermarck,

  During the Middle Ages heretics were accused of unnatural vice as a matter of course. Indeed, so closely was sodomy associated with heresy that the same name was applied to both. In ‘La Coutume de Touraine Anjou’ the word herite, which is the ancient form of heretique, seems to be used in the sense of ‘sodomite’; and the French bougre (from the Latin Buigarus, Bulgarian), as also its English synonym (bugger), was originally a name given to a sect of heretics who came from Bulgaria in the eleventh century and was afterwards applied to other heretics, but at the same time it became the regular expression for a person guilty of unnatural intercourse. In medieval laws sodomy was also repeatedly mentioned together with heresy, and the punishment was the same for both.35

  The term ‘faggot’, still used today in the United States to refer to male homosexuals, and almost always derogatory, derives from such medieval expressions as ‘fire and faggot’, and ‘to fry a faggot’, originally referring to the punishment inflicted on heretics and ‘sodomites’. Those heretics who recanted, in order to escape the death penalty, were forced to wear the emblem of a faggot embroidered on one sleeve. Thus the word ended up as a symbol for the stake, and when heresy was no longer a problem requiring the death penalty, it remained to denote homosexuals. In 1533, during the reign of Henry VIII, the penalty for ‘sodomy’ in England was changed from burning to hanging. The death penalty itself, however, was only abolished in 1861, and in Scotland not until 1889.

  In Spain, during the thirteenth century, homosexuals were condemned to castration and stoning. It remained for Ferdinand and Isabella to introduce the s
take, in 1479.36 In 1541, Nicolas V entrusted the Inquisition with full powers for the repression of homosexuality. In the seventeenth century in Portugal, laws provided for condemnation to the stake, or alternatively the lash and the galleys.

  In Amsterdam in 1730 (today the gay capital of Europe!), two hundred men and boys were tried for ‘sodomy’, with a hundred and seventy condemned to death. Holland at this time saw a real hunt for ‘sodomites’: the streets were papered with notices inviting the population to denounce to the authorities anyone suspected of being homosexual.

  Persecution by the state was backed up by religious morality, both Catholic and Protestant. In some states, as for example in Spain, the public authorities requested the ecclesiastical courts to try cases of ‘sodomy’. Even today, the Church is still responsible, either directly or indirectly, for anti-gay repression.

  The writings of the Church fathers are replete with references to homosexuality. St Paul gives Christ special merit for saving the Christians from this ‘immundita’ (uncleanness), the source of horrendous contamination and dishonour of body and spirit, and yet so widely diffused among the heathen (e.g. Romans 1, 26–27).

  An ancient Christian tradition, moreover, recorded by St Jerome and reiterated in successive centuries of ecclesiastical writings as a definite historical fact, actually held that the birth of the Saviour, the ‘redeemer of the natural order’, brought the sudden death of all sodomites ‘living against nature’, among them the poet Virgil.37

  But given the tremendous spread of homoeroticism in this period, it is clear that if this had actually happened, there would have been ‘such a general decease that the Roman empire would have collapsed straight away’.38

  St Augustine, ‘who by his youthful libertine experience remains, of all the Church fathers, the expert on the sins of the flesh’,39 considered homosexuality a worse and more abominable vice than adultery and even incest. And according to Thomas Aquinas, later on, homosexuality was a shameful sin with which a person ‘debased his own sex’ and to which only bestiality, an even worse vice, was inferior, ‘debasing the species’. On the other hand, St Thomas considered masturbation a far worse sin than the rape of a woman, since ‘just reason declares that the purpose prescribed for the sexual act is procreation’. That said, it’s clear that while a rape can lead to the birth of a son, jerking off can’t lead to the birth of a dick.

  There is little point is tracing all the diverse positions taken on homosexuality by the theologians and canon lawyers throughout the centuries, nor in going into either the full range of punishments provided (including terms of imprisonment that were generally from ten years up to life), or again the various papal bulls against ‘sodomia’, ‘that horrendous wickedness’, as Pius V defined it (1558). Homosexuality, by tradition peccatum illud horribile inter Christianos non nominandum [‘that horrible sin not to be mentioned among Christians’], was now defined by the canon lawyers of the sixteenth century, with baroque pomposity, as ‘something filthy, detestable, extremely grave, evil, disgusting, horrendous, immense and abominable’, as well as ‘a most loathsome, serious, foul, abominable and devouring sin’.

  Finally, we are unable to follow in all its details the curious (alas! sadly curious!) dispute among canon lawyers on the subject of coitus interruptus between men. The Church tried long and hard to establish whether a man who fucks another but does not come into his ass - immissio veretri in vase praepostreo without effusio seminis – should be considered less guilty than those who have ejaculated within. Nor can we follow the debates that surrounded female homosexuality; for having established that an ‘unnatural’ coitus with immissio veretri was indispensable for the ‘crime of sodomy’, the theologians were unclear as to in what sense it was possible to speak of genuine ‘sodomy’ in a relationship between women, given the absence of immissio veretri. Believe it or not, they ended up taking as the significant criterion the lesser or greater development of the clitoris of the woman on top. If a ‘gynaecological’ examination had established that the clitoris, by virtue of its singular development, could have served as a penis, then the court proceeded without further ado to torture, with a view to extracting confessions and ‘imposing on both parties the appropriate penal sanctions’.40

  Meanwhile, though the anti-homosexual taboo claimed countless thousands of victims in Europe, homoeroticism continued to prosper in those lands outside the influence of Judea-Christianity. The anti-gay taboo was unknown in China, Japan, India, the Arab world, Africa, Australia, Siberia or pre-Columbian America.41

  Contemporary Legislation and the Homosexual Rights Movement

  In his ‘philosophical novel’ Aline et Valcour, the Marquis de Sade presents a visit to France by Zamé, the idealised legislator of an unknown Pacific island. In the course of his stay, the host accompanies him to the law courts, as busy as ever in their grotesque and summary sentencing. Zamé is here the narrator.

  —What crime has that unhappy man committed, I asked.

  —He is a homosexual, I was told. You can well see that his is a terrible crime, it stops the growth of population, even destroys it, so that this scoundrel well deserves to be destroyed himself.

  —Well argued, I replied to my philosophical friend, your reasoning is indeed that of a genius.

  Zamé and his guide then immediately proceed to visit a monastery, where a young girl is taking her vows.

  —What is this girl doing, my friend?

  —She is a saint, I was told. She is giving up the world, and is going to bury in the depths of a nunnery the seed of twenty children that she would otherwise have borne for the state to play with.

  —What a sacrifice.

  —Oh indeed, sir, she is an angel, she has a place already in heaven.

  —Quite outraged, and unable to bear such inconsistency, I turned to my friend and said: Sir, on the one hand you bum to death a man whose crime, you say, is that of restraining the population, while on the other hand, you now celebrate a young girl who is committing the same crime. You Frenchmen should bring your affairs into a logical order, otherwise it is quite understandable that any rational foreigner who visits your country should take it as the very centre of madness and absurdity.42

  This was written by the Marquis de Sade, that outrageous libertine, in the Bastille, the year before the outbreak of the French Revolution. In the name of reason, ‘his work discloses the mythological character of the principles which religion says are the foundations of civilisation: the Decalogue, paternal authority, property’.43

  In 1791, in the same spirit of the Enlightenment (Diderot had seen in homosexuality a natural remedy against both overpopulation and syphillis!), the French Constituent Assembly abolished the death penalty for the ‘crime of sodomy’.

  In 1810, accepting a new draft legal code from his minister Cambacérès, himself gay, Napoleon finally legalised homosexuality; homosexual relations in private between consenting parties were no longer considered an offence in the countries where the Napoleonic code was enforced, among them Italy.

  With the fall of Napoleon, Italian legislation partly reasserted its former persecutory character. In the Sardinian code of 1859, article 425 treated homosexuality as a crime, if associated with violence or scandal. Yet when the Sardinian code was extended to the Southern provinces in 1861, article 425 was abolished.44

  Under fascism, although specific anti-homosexual legislation was not introduced, the island of Ventotene was set aside, among other purposes, as a place of confinement for gays.45 At the end of 1941, moreover, the old 1869 penal code for the army and navy was reintroduced, this providing particular ‘disciplinary’ sanctions (up to ten years forced labour) for ‘crimes of unnatural passion’.

  Present Italian legislation does not treat homosexual relations as a special type of offence. In fact, according to the ministerial statement on a new draft penal code:

  This filthy vice . . . is not so widespread in Italy as to require the intervention of the criminal law. This should be s
tandardised according to the principle of absolute necessity, and there is no justification for creating new offences unless the legislators should find forms of immorality that disrupt social life in an alarming way. This is happily not the case in Italy for the vice under consideration here. These reasons against the criminalisation of homosexuality have convinced me . . .46

  So if homosexuality is not in itself a crime in Italy today, this depends on the statistical information available to our legislators. If these gentlemen should however realise that acknowledged homosexuals in Italy make up at least 4.5 per cent of the population, and so-called ‘bisexuals’ far more, it would then follow that homosexuality should perhaps be criminalised after all.47

  In any case, as we can see from the ministerial statement on the diffusion of this ‘filthy vice’ in Italy, present legislation

  leans against homosexuality in indirect ways, in the sense that the condemnation of homosexuality can be taken into account when this comes up against certain other interests that are different from the interest involved in the struggle against homosexuality itself. Thus homosexuality can be punished when it is accompanied by extremes of carnal violence (or violent acts of desire), or when the obscene act is performed in a place exposed to the public; here is also the crime of ‘corruption of minors’.48