The Regulation of “Sodomy” in the Latin East and West
2020; University of Chicago Press; Volume: 95; Issue: 4 Linguagem: Inglês
10.1086/710639
ISSN2040-8072
Autores Tópico(s)Marriage and Sexual Relationships
ResumoPrevious articleNext article FreeThe Regulation of “Sodomy” in the Latin East and WestRuth Mazo KarrasRuth Mazo Karras Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreThe chronology of the widespread criminalization of same-sex activity in medieval Europe is generally agreed upon. John Boswell argued that up until the twelfth century, same-sex desire and activity were not a major concern to the church or to lay society (writing in the late 1970s he used the terms “homosexuality” and “gay people”).1 When Peter Damian wrote his Book of Gomorrah sometime around the middle of the eleventh century, the first major blast against same-sex relations among the clergy, the Pope declined to act on it.2 Boswell argued that this changed in the thirteenth century, when legal systems began to adopt strict penalties (and sometimes enforce them) and churchmen, following in particular the lead of Thomas Aquinas, used the discourse of “nature” to cast any nonreproductive sex as deeply deviant. Joan Cadden has demonstrated that the discourse of “nature” was far from unitary. “Nature” could be understood in different ways, and medical commentators thought that it was in some men’s natures to desire penetration; but while this demonstrates that the concept of “natural” was indeed very complicated, these writers had to work against a backdrop of church doctrine.3R. I. Moore adopted Boswell’s argument and connected it to a larger framework of the “formation of a persecuting society.”4 This was the era in which the church set up legal frameworks to investigate heretics and Jews, but not, Moore suggests, because heretics were becoming a worse problem. He argues these apparatuses were a way for the emerging secular powers, in concert with the church, to establish and exert authority. The categorizing and persecution of religious and sexual deviance were thus part of the logic of developing institutions of power. Moore suggests that the persecution of what he calls “male homosexuality” came somewhat later than that of heretics and Jews, but he notes the Council of Nablus in the early twelfth century and the connection of sexual deviance with Islam, as well as with heresy. As I will argue, this connection was indeed central to the shift in the central Middle Ages toward the persecution of same-sex activity by secular authorities. The criminalization of same-sex activity in the Latin West may have been an unintended consequence of Western European polemic against Muslim societies.This article will for the most part not deal with the church’s attitudes toward same-sex relations, nor with the more positive aspects of same-sex relations in medieval culture. Scholars of medieval sexuality, particularly in the field of literature, have demonstrated the existence of subcultures of same-sex sex, love, and desire, whether expressed through identity, writing (including rich traditions of love poetry in many medieval languages), or action. There is much in the Middle Ages that is distinctly queer, and accepting of the queer. Here I discuss a grimmer reality about same-sex activity during this period: state violence against it, or the threat thereof.Terminology in this area of study can be difficult. Michel Foucault famously connected the invention of the “homosexual” with bourgeois modernity: “Homosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphroditism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species.”5 In the realm of law, whence he originally derived it, Foucault’s distinction between acts and identities does hold up better than it does in some other areas. It was not homosexuality, as an identity or way of being, that was criminalized, it was particular acts. Therefore, while I occasionally use “homosexual” as an adjective (for acts rather than persons), I stay mainly with “same-sex sexual activity.” Sodomy is used here only where the Latin or medieval vernacular uses its cognate. It does not always refer to same-sex activity; indeed, Foucault called it an “utterly confused category” and suggested that, “as defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them.”6 It could be used to denote any sort of sexual intercourse other than penis-in-vagina, man-on-top. It could also be used in a more generalized way to mean not specific activities but rather a general miasma of sexual sin.7 Therefore it must be considered carefully in context. Mark Jordan argued that it does not have a stable meaning in medieval theology but is associated with outsiders, and easily slips into metaphors of contagion.8 Often legal contexts do not use it at all. When it does appear in a legal context, it most often means sex between two men. To discuss same-sex relations as a sin in an ecclesiastical context, as in the enumeration of the various branches of lechery by late medieval moralists, writers most often used euphemisms: “sin against nature” or “unspeakable sin,” the former of longer standing and the latter coming into use in the twelfth or thirteenth century.9Sexual accusations as political tools against those in power were of course known in the Middle Ages, and not limited to same-sex relations.10 Henry IV, enemy of Pope Gregory VII and the church reform movement, was accused by churchmen of committing sexual sins with both genders.11 These were rhetorical rather than practical accusations. It is hard to know how much real concern with behavior was behind them, and how much they merely reflect partisan mud-slinging; but this sort of mud was available to sling. Similarly, when Orderic Vitalis complains about the sodomy rampant at the Anglo-Norman court, it cannot be taken as a true account of the behavior there, but it is noteworthy that it is an accusation of sodomy rather than some other form of debauchery that he chooses to level at William Rufus’s courtiers—a choice made clearer by the fact that he accuses the king himself of heterosexual debauchery.12 In any case, political accusations in this period, the eleventh to twelfth centuries, did not bring with them prosecution. For the most part, secular law in Latin Christendom up through the central Middle Ages was not especially concerned with same-sex behavior.The chronology in the Greek world is somewhat different, with Justinian issuing a novella in 538 calling for the death penalty for those engaged in crimes against nature.13 Justinian’s Institutes also followed some earlier Roman interpretations of the Lex Iulia de adulteriis, providing the death penalty for adultery, which included same-sex activity between males.14 Procopius reports that some men were punished with castration even though this was not provided in the law, and suggests that accusations of unnatural activity were used as a way of attacking political enemies.15 But Angeliki Laiou points out that although the death penalty for sodomy can be found in later Byzantine law, the examples are much earlier, and by the central Middle Ages commentators who read these passages were not providing contemporary examples, as they were for other crimes.16A turning point for the prosecution of same-sex activity in Western Europe, although it did not take place in Western Europe, came already in the twelfth century, well before Boswell’s invocation of thirteenth-century understandings of “nature.” An assembly at Nablus in the Latin Kingdom of Jerusalem in 1120 provided for exile, mutilation, or death for a number of sexual offenses. This assembly, often referred to as a council in modern scholarship but called a conventus publicus et curia generalis by William of Tyre, the one chronicler to mention it, was called by both the patriarch and the king of Jerusalem and was attended by lay as well as ecclesiastical officials.17 The basic purpose of the council was to resolve the investiture conflict for the kingdom of Jerusalem: the first three canons constitute what is called the Concordat of Nablus, in which the king and nobility granted complete control of tithes to the church.18 The canons then continue, however, to regulate other activity, including what has been called the first dress code legislation in Europe (forbidding Franks from dressing in Saracen clothing) and a number of canons on sexual activity. The latter prescribe extremely harsh punishments. For example, canon 5 provides an unprecedented punishment for adultery on the part of a man: “Whoever shall be proved to have lain with the wife of another, the sentence of the court having been heard, shall be emasculated, and shall be expelled from this land. The adulteress shall have her nose cut off, unless her husband wishes to show mercy to her. If he does so, let them both cross the sea.”19 Roman law had given the husband the right under some circumstances to kill the couple if they were in flagrante, but the state provided only the punishment of exile. Leviticus did prescribe the death penalty, although it was not enforced in Jewish law after the destruction of the Temple; Christ’s admonition to the crowd, “Let he who is without sin cast the first stone,” was a response to this law. The church condemned adultery by both men and women, set penance for it, and sometimes allowed a husband to repudiate his wife for it, although not to marry another.20 The canons of Nablus also provided castration or other maiming for other sexual crimes, in particular those across religious lines, for example, canons 12–13: “If a man is proved to have knowingly lain with a Saracen woman, let his penis be cut off, and let her nose be cut off. If a man rapes his own Saracen woman, let her be enslaved to the fisc, and let his testicles be cut off.”21The punishment for sodomy was even harsher: burning. The canons made a distinction between the active and the passive partner, although only to emphasize that both were to be subject to punishment (if adults): “If any adult is proven to have defiled themself willingly with sodomitical depravity, both the active and the passive partner shall be burned.”22 Canon 10 seems to imply that regardless of age the passive partner could be a victim of rape: “If someone, having suffered sodomitic wickedness by force, conceals it and permits themself to be polluted again and does not declare it to justice, and it shall afterward be proved, let them be judged as a sodomite.” Canon 9, however, suggests that this is more likely a child or old person: “If a child or aged person is defiled by force by a sodomite and raises an outcry, the sodomite shall be given over to the flames.”23 In medieval monasteries, as discussed by Elliott, or in the subculture of medieval Florence described by Michael Rocke, sodomy is an age-patterned offense, mature men or older boys with younger boys.24 The inclusion of elders as victims here suggests that this is perhaps not a matter only of desire, shaped by the cultural division into active masculine and passive effeminate, but also of physical strength. It is noteworthy in the canons of Nablus, as in so many other contexts, that the only sexual behavior by women that is a matter of explicit concern is with men, particularly men of other groups, but it is possible that the masculine singular is meant to be inclusive; burning, unlike castration, could be applied to either sex. The death penalty here suggests that sodomy was considered the most serious of the offenses, although burning was specified only for the third offense; the first could be expiated with penance, the second with penance and expulsion from the kingdom.We do not know to what extent these laws were put into force. One point that suggests that they were not is the use of the different language for mutilation for sexual crimes. Four different terms are used for the genital mutilation of men (eviretur, ementuletur, extesticulatur, eunuchizabitur), and two for the nasal mutilation of women (enasetur, naso curtetur). The different punishments are for different offenses and it is possible that things were so finely calibrated that a different kind of mutilation happened for different offenses, but not in all cases: “emasculate” and “eunuch-ize” must also be the same thing as removal of either the penis or testicles or both. Two different terms are also used for burning for sodomy: comburatur, flammis tradatur. This is very likely to be elegant variation, whether in terminology for the same thing or in thinking up an appropriate punishment that was not (as yet) practiced. As Klaus van Eickels suggests, the use of language is an indication that the canons were intended to be largely symbolic, a statement of the moral stance of the ecclesiastical and lay authorities, realigning the community with God by placing extremely harsh punishments on behavior believed to contradict God’s law.25 It sounds much too careful to be a codification of current practice. The fact that William of Tyre is the only chronicler to mention the council—Fulcher of Chartres says nothing about it—and that he does not list the canons but simply says that copies were placed in all the churches, suggests too that the canons were not intended to be practical law; for William it was important that the council or conventus had placed the king and patriarch of Jerusalem in positions as leaders of the Latin East.26 Indeed, it is not certain that the canons as found in the Sidon manuscript are exactly those enacted at the council.The context is important here, especially as the king’s predecessor Baldwin I may have, as Jay Rubenstein puts it, “lived in a chainmail closet” and had male Muslim or ex-Muslim lovers.27 Certainly sexual contact between members of the different communities in the Latin East was not unknown: Baldwin I and Baldwin II married Armenian Christians, as did many other Franks.28 Marriage between Christians of different communities, however, was very different from sexual relations between Christians and Muslims, which could not be recognized as marriage; in addition, it was different from sexual activities between two men. The major military defeat suffered by an Antiochene army in 1119 (the “Field of Blood”) may have prompted the attendees at the council to assert a particularly strong moral code of conduct, a performance of purity, particularly directed against sexual misbehavior with non-Christians, who could have been a threat in the case of invasion.29 But the focus on purity need not be solely a direct result of that battle. In the early years of Outremer there was a general sense of being a frontier society and a consequent concern about behavior that might put the community at physical or moral risk. The Franks thought of themselves as the heirs of Biblical leaders like Joshua, who had counseled the Israelites to remain pure (Joshua 23), refraining from intermarriage and idolatry among other things.30Benjamin Kedar has demonstrated that the canons of Nablus resemble Byzantine legal issuances, and suggests the direct or indirect influence of the Ecloga, dating from 741 on some of the punishments. This influence may have come via the local Greek Christian population. Castration as punishment appears in the Ecloga, though not specifically for the offenses for which the Nablus canons prescribe it. The punishment for adulteresses in Nablus—having the nose cut off—resembles that in the Ecloga, where the same punishment was applied to men as well for various offenses. Death by the sword is the punishment for male-male sex, although the “passive” partner may be spared if underage, and penectomy is the punishment for bestiality.31 Van Eickels points out that castration was practiced in Norman realms, although nowhere else, as a punishment for political offenses, and many of the lords and ecclesiastics in the kingdom of Jerusalem would have been familiar with it from there.32 It is found occasionally in Western Europe for various offenses, such as bestiality in a Frisian text from the thirteenth century, or treason in fourteenth-century England.33 Discussion of castration as punishment does not turn up in other legal texts from the Latin East.34 It could be that its use here, taken from Greek law, was an effort to position the Latin leaders as leaders of all the Christians in the region.There is a certain logic to castration as a punishment for sexual offenses. The point of harsh punishments for adultery in the ancient world, at least ostensibly, was to maintain the integrity of the bloodline. This is why an adulterer under Roman law was a married woman who had sex with a man not her husband, or a man who had sex with someone else’s wife. Christianity brought with it a theoretical repudiation of the sexual double standard, so that a married man who had sex with a woman not his wife could be considered an adulterer also, although this definition was not universally accepted. For the man who slept with another’s wife, castration as punishment was not just the removal of the limb with which the offense had been committed, although that was certainly a traditional motive for various kinds of punishments.35 It also was a removal of the ability to reproduce. The tight link between male-female intercourse and reproduction gave rise to what Patricia Simons has called a “semenotic” economy, in which the ability to produce seed, not the size of the penis, was important.36 Castration for rape appeared in other European legal traditions, notably England, in laws attributed to William the Conqueror and in the early-thirteenth-century treatise Bracton, although again it is not clear that this penalty was ever applied in practice.37Sex between men in the canons of Nablus did not fit into this punishment-fits-the-crime model; the punishment there was death, the first time in Western European culture that this was the case. Even the Visigothic law from 653, one of the harshest, had provided castration and perpetual imprisonment for men who had sex with other men (masculorum concubitores). We know little about the enforcement of such a law, or indeed the motivations behind it.38 We do have the witness of Johannes Malalas that Justinian enforced his own ruling requiring the castration of men involved in same-sex relations, a century before, which may have influenced the Visigothic law.39 But Nablus was harsher, providing death like the Ecloga.It is in the century thereafter that we find a similar punishment in Western Europe. The Livres de jostice et de plet, written in the thirteenth century in the Orléans region, punishes sodomy by combining the penalty of burning as provided for sodomy in Nablus and castration as provided there for other crimes. This thirteenth-century development in French law may have been directly influenced by laws and attitudes in Outremer. The Livres de jostice et de plet is noteworthy as the first example of secular law explicitly prohibiting women’s same-sex activity.40 The term sodomy is used here to cover both, suggesting that women should perhaps be understood as included elsewhere. The canons of Nablus use masculine forms in talking about sodomy, but it is possible it is intended in a non-gender-specific way. Phrases like sin[s] against nature can apply to both men and women, although the vast majority of cases we have involve men, and modern historical work reflects this. Although Boswell’s book title referred to “gay people” he mainly discusses men.Judith Bennett considers some of the reasons historians have given for why same-sex relationships between women do not appear very often in the sources: they did not bother people because they did not prevent women from bearing children to legal husbands, because they did not involve penises, because they did not involve sperm, and because of pervasive misogyny that made anything women did not matter very much.41 Much of the evidence for criminalization refers to men. Helmut Puff has identified several cases in late medieval Germany, but in the one he discusses in most detail, the offense was only described, not labeled either “sodomy” or anything else.42 Both male and female same-sex relations were assimilated to a cross-sex pattern where one partner played the male and one the female role. In some jurisdictions, however, “sodomy” was used for a crime committed by women: Jonas Roelens has demonstrated this for the southern Netherlands.43The Livres prescribed castration and then loss of member for men involved in same-sex acts, and loss of a member for women. The member is not specified; one may assume that it is the penis for men. Louis Crompton suggests that the juxtaposition of the passages on men and women indicate that the woman would lose an “equivalent member” to the man’s castration, i.e., clitoridectomy.44 However, as far as I can find, this is not attested elsewhere as a medieval punishment for anything.45 The Nablus canons, with the combination of castration and rhinectomy for adultery, suggest that the woman’s facial mutilation might be considered the equivalent. Rhinectomy, which goes back to the ancient world as a punishment for women, appears for example in religious texts (in which nuns self-mutilate to avoid being raped)46 and in literary ones (as in Marie de France’s Bisclavret, in which the werewolf bites off the nose of his adulterous wife).47 It also was used as a punishment in Western Europe, as in the Constitutions of Melfi of Frederick II of Sicily, in a law of Roger II from around 1140: it is a more lenient punishment than being killed by her husband, although if her husband did not wish to punish her she would be publicly flogged.48 This may be a Byzantine borrowing, as is possibly the law of Cnut of England from 1027–34 prescribing that an adulterous woman should lose her nose and ears.49 Cnut also seems to have used this punishment on men.50 Valentin Groebner cites a long history of rhinectomy as either judicial or extrajudicial punishment, especially for sex offenders both male and female, since antiquity, and suggests that it sometimes symbolized or was parallel to castration.51 It could also be an example of the loss of the member with which one sinned—in this case, not just the nose but the entire face, the idea being that a woman’s beauty was the occasion of sin. Punishment of feminine lust in Hell via the breasts and genitalia appears in medieval sculpture, for example in the porch at Moissac.52In the Livres, as punishment for sodomy, the member the woman is to lose for the first and second offense may also be a breast, or a limb, and conceivably a man could be condemned to lose a limb too. Or the second offense may have been the ears. Or the author/compiler might not have had a clear idea of what was intended, merely trying to create balance. The text is not an official compilation, although it claims to be the laws of the kingdom of France; it may have been made by a student or scholar for his own use. Much of it is a translation of Justinian’s Digest, as well as the customs of the Orléannais. The provision on sodomy is found in a set of punishments said to be current in the duchy of Orléans. It is not clear that they reflect contemporary practice. There are other crimes listed as punishable by death, a few by burning but most by hanging. The only other one for which the punishment is mutilation, however, is where someone has caused someone else to lose a member, and is punished by the loss of one. The idea both of castration as punishment for sexual crime and of secular punishment for sodomy are new and unusual here and could well have come from the crusader states.53The Coutumes de Beauvaisis, compiled in the thirteenth century by Philippe de Beaumanoir—again, a textbook, not a promulgated code—like the canons of Nablus, prescribed burning for sodomy. After listing drawing and hanging as punishment for treason, murder, manslaughter, or rape, and hanging for arson and theft, it provides: “Whoever errs against the faith and does not wish to return to the way of truth, or who commits sodomy, he must be burned and forfeit all his goods.”54 Alfonso of Castile’s mid-thirteenth-century Siete Partidas also provided death for sodomy. The section on sodomy is quite brief as to the penalty, but goes into much more detail with regard to the definition of sodomy (a sin that men commit with each other; women do not come into it) and the extent to which God hates it.55 Alfonso may have used sodomy along with treason as an accusation against his political enemies.56 We also find the death penalty for sodomy in two late thirteenth-century English texts: Fleta, in Latin, which stipulates burial alive, and Britton, in French, which stipulates burning. In each case, sodomites are included in a list of criminals to be punished in this manner.57 It is noteworthy that none of these texts, whether from France, Castile, or England, is a piece of legislation (except perhaps the Siete Partidas, which were not put into practice): all are treatises presenting what purports to be custom but in an idealized way. They could have looked for models and found them in the canons of Nablus.What is the relation, then, between the canons of Nablus and these Western European laws? Adam Bishop suggests that the inclusion of the burning of what he calls “adult homosexuals” in the Nablus canons “was a common punishment for homosexuals in the High Middle Ages.”58 This is not, however, the case until the thirteenth century; the canons of Nablus opened up new territory here. The burgess assizes, the urban law of the Kingdom of Jerusalem from the mid-thirteenth century, follow suit and cite scripture, not specifically on the seriousness of this or other crimes, but on the justification for the death penalty generally: the title of the chapter says in Latin, “of a witch, whom you shall not suffer to live” and then in French, “Of murderers and sodomites and evildoers we will speak afterward.” The chapter then, as the heading states, speaks of the Mosaic prohibitions on witchcraft and homicide; the following chapter, in French, lists those whom “law and reason” command should be put to death.59 The burning of sodomites was not, as Bishop points out, taken from biblical law despite the claims of this passage; rather, it seems to have come from the canons of Nablus.60If Nablus broke the ground, can thirteenth-century treatises from Europe have been influenced by its canons? I cannot demonstrate that they were, but they certainly could have been. Nablus was ahead of its time on clothing regulations: John Tolan takes the strictures of Nablus against Muslims wearing Frankish garb as “in the same spirit as” the Fourth Lateran Council a century later, which required that Muslims and Jews be distinct from Christians in their dress and specified the reason as the avoidance of intergroup sex.61 This could well have been not just the same spirit, but based on knowledge of the Nablus canons. According to William of Tyre, copies of the canons of Nablus were placed in every church in the kingdom of Jerusalem; even given William’s tendency to exaggerate, we can assume that there were multiple copies made. Only one has survived, from the church of Sidon. The manuscript, containing other legal material as well, ended up in the library of the Avignon popes, possibly brought by Rostagnus Candola, the last bishop of Sidon, who is known to have been in Avignon between 1319 and 1327.62 Other copies (or knowledge of the canons) may have ended up in Europe earlier but are not attested. As James Brundage points out, however, there were a number of European jurists who are attested in the Latin East for a period of one or several years at a time, and who may have returned to Europe.63 Their training would have been in Roman and canon rather than in customary or royal law, but as the Livres de jostice et de plet is in large part a translation from or summary of Roman law, it is entirely plausible that the person who compiled it had studied with (or was) a trained Romanist who had worked in Outremer. Of course, it need not be a whole law book or set of canons that became known in Western Europe. Particular details could have been transmitted even if we do not know the textual mechanism.64Same-sex eroticism was certainly not imported to Europe from the Middle East, nor am I arguing here that it became more common in the twelfth century. Rather, I suggest that it became at that time something to worry more seriously about, because it was a convenient source of blame and opprobrium for Muslims.65 Not only in relation to sodomy, sexual activity was often seen as a place where a line must be drawn in terms of intercultural contact.66 Women’s bodies might become a border that could not be crossed. This is clearly observable in the canons of Nablus. The sexual depravity of Turks and Saracens (sometimes, but often not, interchangeable terms) was a common trope of Christian writers, particularly in the context of war against them.67 The majority of these accusations have to do with the rape of Christian women by Muslim men—something that undoubtedly did happen in wartime or in raids, as did the rape of Muslim women by Christian men, and the rape of women by members of their own religious group. A tenuous but nevertheless widespread knowledge of the Muslim custom of polygamy, especially the criticism of Muhammad’s multiple marriages, and of the permissibility of men’s having sex with their female slaves in Qur’anic law, no doubt contributed to this trope. However, claims that Saracens or Turks raped Christian boys or adult men were also current at the time of the First Crusade or shortly thereafter, and the denu
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