LHMP #129 Crompton 1985 “The Myth of Lesbian Impunity: Capital Laws from 1270 to 1791”

Crompton provides an in-depth study of European and American laws addressing homosexual acts between women, from 1270 on. Prior to this study, the general historical understanding was that lesbians were ignored by the law, based mostly on an unwarranted generalization from English law. In fact, lesbian acts were criminalized in legal systems in France, Spain, Italy, Germany, and Switzerland, and were considered equivalent to male sodomy.

Legal prohibitions against female homosexuality in western culture do not date as far back as those against men. Talmud treats the activity as mere “obscenity”. The only passage in the New Testament that has been interpreted as addressing lesbian acts is Paul’s condemnation of women who “change the natural use into that which is against nature,” which later was interpreted as referring to sex between women.

The earliest law that Crompton found unambiguously prohibiting sex between women in a French code of 1270, which, even so, does it in the context of an illogical parallelism with male sodomy. One passage states that a man proved to be a sodomite shall lose his testicles at the first offence, and his “member” (i.e., penis) at the second, with the third offense calling for burning. The following passage notes that “A woman who does this shall lose her member each time.” Crompton suggests this may refer to clitoridectomy (twice?) but it may simply be a nonsensical structural parallel. In literature, burning is the prescribed penalty for “buggery” between women in the early 14th c. French Romance Yde and Olive.

This somewhat extreme shift from indifference to execution seems to have been driven by an elevation of “natural law” by which non-procreative sex acts were considered inherently sinful, rather than (as in Jewish law) being taboo due to associations with pagan practices. And early commentaries on Paul uniformly interpreted his words as applying to lesbian acts

Penitential manuals begin addressing the topic of lesbian sex as early as 670 A.D. (Theodore of Tarsus) and, once introduced, the topic continues to be condemned via works such as Gratian’s Decretum  of 1140 which continued in use into the 20th century. Thomas Aquinas’s Summa Theologica (1267-1273) unambiguously condemns “copulation with an undue sex, male with male or female with female,” and specifically associates this with the term “sodomy”.

Classical Roman law began to be revived in medieval Europe in the 11th century via Bologna, and promulgated in particular through the works of Cino da Pistoia and Bartholomaeus of Saliceto in the 14th century. Cino interpreted a law in the Code of Justinian as referring to lesbians, although the main purpose of the law was to exclude rape victims from the category of “unchaste women”. But in noting who counts as “unchaste”, the passage “women who surrender their honor to the lusts of others” is glossed wih the note that a woman may surrender to a man or to a woman. Expanding on this, the gloss notes, “For there are certain women, inclined to foul wickedness, who exercise their lust on other women and pursue them like men.” Bartholomaeus goes further and prescribes the death penalty in this case. The influence of Roman law was such that interpretations such as this might be held to apply even when local law codes carried no similar prohibition or penalty. Roman law was being freshly incorporated into national laws as late as the 16th century in Germany and the 17th century in Scotland.

The question remains whether these laws were carried out in actual practice. Crompton assembles evidence for significant numbers of judicial burnings and hangings of men for sodomy in the 13-18th centuries. Documented prosecutions of women are much rarer. He collates the following cases which are repeated in every subsequent article on this topic:

• Speier (Germany), 1477, a judicial drowning for lesbian acts
• Spain, 16th c, 2 nuns burned for sex with each other using “instruments”
• Bordeaux (France), 1533, Françoise de l’Etage and Catherine de la Manière tried and tortured for sexual acts together, but acquitted for insufficient evidence
• Fontaines (France), 1535, a woman condemned to burn for disguising herself as a man and marrying another woman  with whom she had sex
• Marne (France), 1580, a group of seven or eight women disguise themselves to live as men; one became engaged to a woman, then married a different woman, but was recognized by a previous acquaintaince and was condemned to be hanged. The charge included using “illicit devices” for sex.

The law code of the Holy Roman Emperor Charles V (1532) prescribes death by burning for “anyone [who] commits impurity...a woman with a woman.”

The statutes of the Italian town of Treviso expanded on the description of male and female sodomy by noting the common terms for those who commit it: “buzerones” (for men) and “fregatores” (for women).

The standard work on medieval Spanish law, written in 1265, was glossed in 1555 in a way that suggests there was some question whether sodomy statutes applied to women. One commenter argued that lesbian acts were less serious than male ones as women could not “pollute” each other, and therefore might be punished with something less than death. This was clarified by another commenter who fastened on the distinction of whether penetration was involved and prescribed burning if they use “any material instrument”, but a lesser penalty if no instrument is involved.

Russian law of the 17th century also prescribed burning for female sodomy.

The lack of laws against lesbian acts in England was not a general feature of Protestant countries. Calvinist regions of Germany and Switzerland called for severe punishments, and an execution is noted in Geneva (Switzerland) in 1568 of a woman who admitted to sex with women.

Drafters of the first law codes in the English colonies in the New World at first included the death penalty for sodomy whether male or female, but that draft was never implemented. The rare legal cases from New England in the 17th century include a charge against “the wife of Hugh Norman and Mary Hammon” for “lewd behavior each with other upon a bed” but they were sentenced only to a public confession.

In the 18th century, the focus on “instruments” in the commission of female sodomy gave way to the new fascination with the clitoris and the possibility that it might be large enough to enable penetration. In this context, anatomy itself was considered sufficient proof of guilt, whereas “normal” anatomy was considered incompatible with the commission of sodomy. French authorities of the 18th century continued to condemn female sodomy, but no trials for it have been found in that era.