Saturday, March 26, 2005

Jefferson and Kant on sex crimes

The criminal punishment of homosexual conduct is a deep and lasting stain on Western civilization. This subject is inevitably a dismal one. Yet examination of the types of punishment favored casts some light on the nature of thinking about same-sex behavior.

In most jurisdictions of medieval Europe the penalty for sodomy was death, usually by burning at the stake, but sometimes (as in England and the Netherlands) by hanging.

Yet there was, in principle, an alternative in some jurisdictions; in these, the penalty for male homosexual behavior was supposed to be castration. According to historians, the emperor Justinian (a notorious homophobe) had recourse to this form of punishment. However, it was not incorporated into his Code or into the Novellae, which have two new laws against same-sex conduct.

In Spain the Visigothic Laws prescribed castration, a provision affirmed by Ferdinand III of Castile in1299. In France the law code of Jean Bouteiller (1479) specified removal of the testes on the first offence, amputation of the penis on the second, and death on the third. In Norway a twelfth-century parliament in Bergen specified castration.

In summary, medieval Europe discloses two foci of the castration punishment for sodomy, one in the eastern Mediterranean (Constantinople), the other at the western end (Visigothic Spain). From the latter source, the idea spread northward. Then it seems to have gone into hibernation for some three centuries.

Towards the end of the eighteenth century castration was revived as a penalty by two celebrated thinkers, Thomas Jefferson and Immanuel Kant. These are, needless to say, aspects of their thought we did not learn about in school.

Jefferson’s comments stem from "A Bill for Proportioning Crimes and Punishments." Submitted to the Virginia legislature in 1779, it was never adopted.

Section XIV reads as follows: “Whosoever shall be guilty of rape, polygamy, or sodomy with man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least.”

Jefferson’s notes indicate that he regards buggery as the overarching category, the genus (it includes bestiality), while sodomy and bestiality are the species. In this view his proposed statute excludes bestiality. With reference to his thinking Jefferson cites standard sources in the history of English law, such as Fleta, Britton, and Henry VIII’s antibuggery statute of 1533. None of these mentions castration. In view of the earlier history, he is unlikely to have come up with this idea himself. But by what channel did he learn of the precedents? That is something that remains to be learned.

Since several colonial statutes include women—for lesbian conduct—that is probably what Jefferson meant in that regard. They have never been included in English legislation. Yet where did he get the idea of mutilating the nose? Possibly from the penalty, apparently observed in some medieval monasteries and nunneries, of cutting off the nose as a punishment for same-sex conduct. This practice in turn reflects the folk belief (which even Freud endorsed for a time) that there is a direct connection between the nose and the sexual organs.

Kant’s proposal came later. It stems from one of his last works, known in English as The Metaphysics of Morals. Published in 1797, when the philosopher’s mental powers had ebbed, the book is generally regarded as a compilation of lecture notes. On this basis, the material would have been developed some years earlier.

The passage cited stems from "explanatory remarks on the first principles of the doctrine of sex crimes," an appendix added to a new printing (also 1797) in response to a review.

"12] But what is to be done in the case of crimes that cannot be punished by a return for them because this would be either impossible or itself a punishable crime against humanity...for example, rape as well as pederasty [Päderastie] or bestiality? The punishment for rape and pederasty is castration (like that of a white or black eunuch in a seraglio), that for bestiality, permanent expulsion from civil society, since the criminal has made himself unworthy of human society. -- Per quod quis peccat, per idem punitur et idem [one who commits a sin is punished through it and in the same way]." [Mary Gregor, trans.].

The translation obscures an important point. For Kant, and for Germans today, the term Päderastie does not refer to pedophilia, but to anal penetration. As such, it could in principle refer to heterosexual behavior, but as this was little noticed at the time, the primary reference is to men having sex with men in this manner. The reference to the seraglio in Istanbul is odd, since the eunuchs who guarded it did not lose their organs as a punishment. The white eunuchs, though, did look after the sultan’s catamites.

Concluding comment: So did these speculations, even on the part of major Enlightenment figures, matter? I think that they do, for beginning about 1907 a number of American states adopted "eugenics" statutes specifying castration for mental defectives and "degenerates," including homosexuals. Evidence is coming to light that in quite a few instances these inhumane measures were carried out.