Sodomites outlaws under the Code Pénal

Between 1811 and 1911, homosexual behavior was no longer punishable by law. Yet many sodomites were caught and convicted. In Utrecht in 1816 no less than thirty at a time, more than in 1730, but the sentences for the ‘crimes’ were much lower.

Code Pénal

In October and November 1816 thirty men from Utrecht were convicted of public indecency. They had confessed to having sex with another man in a public place. In doing so, they had acted in violation of Article 330 of the Code Pénal. This criminal law was introduced in 1811 after Napoleon had annexed the Netherlands to the French Empire a year earlier. The Code Pénal contained a very strict penal system with minimum and maximum sentences for each crime.

Sodomy no longer mentioned in the law

What was new and for the benefit of those who had sex with peers: the government no longer interfered in private life. What citizens did at home with mutual consent was their business. In the Dutch Criminal Code, which applied from 1809 to 1811, sodomy was still severely punished up to the death penalty. The Code Pénal no longer listed sodomy as a separate crime.

Although the annexation by France only lasted a few years, the Code Pénal remained in force after that, mainly because several Dutch governments failed to agree on a new Penal Code. It was not until a century later, in 1911, that homosexual behavior (with a minor) was made a criminal offence again.

Sodomites still outlawed

The fact that homosexual behavior was no longer punishable from 1811 did not mean that sodomites were no longer prosecuted from then on. Despite the sudden introduction of a new law, the attitude about sodomy among the population and the government did not change. The Code Penal offered the police and judiciary enough possibilities to make it quite difficult for sodomites, as the thirty residents of Utrecht would experience in 1816.

Fanatical prosecutor

It started on June 16, 1816, with the discovery of the body of the approximately 15-year-old Johan Schroven. The culprit turned out to be Johann Christoffel Klanck, the innkeeper of the gentlemen’s club Sic Semper (‘It will always be like this’). It soon came out that the perpetrator and victim had had sex with each other several times and that the boy had asked for money for this. During the last meeting, he would have tried to blackmail the innkeeper. According to Klanck, it had come to a fight with a fatal outcome. However, the criminal prosecutor (comparable to a public prosecutor) Pieter Provó Kluit managed to convince the court that Klanck had first violently assaulted the boy and then beat him to death. Klanck was sentenced to death and publicly hanged in Utrecht in January 1817. Provó Kluit held various positions within the judiciary for more than fifty years and, according to many trials, targeted sodomites and Jews in particular.

Violation of public honor

During the 1816 interrogations, the authorities used the same tactics they had used in the 18th century with arrested sodomites: they tried to extract as many names as possible from other sodomites to trace a network, interrogated those suspects and asked in detail about the sexual acts that had taken place. For example, they tracked down 29 Utrecht men via Klanck, all of whom had had sex with other men in public places. Because of that fact, they could be charged with violation of Article 330 of the Code Pénal against public indecency. They received the maximum sentence of one year in prison plus a fine of 94 guilders, 4 pennies and 12 cents (the exchange value of 200 French francs stated in the law). Only one suspect, the only one from high society, appealed. Hendrik Swellengrebel from Maarssen, a justice of the peace (a kind of subdistrict court judge for minor offences) who, like Klanck, was a member of the Sic Semper society, was acquitted.

Maximum penalty

There were no witnesses to any of the 1816 cases of public indecency. The mere fact that someone could have seen the sexual acts was enough in those days to reach a conviction. It was not until a later amendment to the law that it became a requirement that at least two people involuntarily witnessed the immoral behavior in public space.

Throughout the century, sodomites were arrested all over the country for breaking Article 330, and often a bad reputation was enough to be convicted. They almost always received the maximum sentence – repeatedly double – while ‘heterosexual’ violation usually resulted in no more than three months in prison.

Hardly any other stories about gay men or lesbian women from Utrecht have survived from the nineteenth century. What we know comes mainly from legal sources and mainly concerns sexual contacts between men in public places or between soldiers inside and outside the barracks. More research is needed to uncover other aspects of the lives of the ‘wrong lovers’.

Maurice van Lieshout 

Literature

Gert Hekma, ‘ “Een sodomietersche boeventroep”. Homoseksuele zedendelicten voor de Haarlemse krijgsraad in de negentiende eeuw’, in: Gert Hekma e.a., Goed Vekeerd. Een geschiedenis van homoseksuele mannen en lesbische vrouwen in Nederland (Amsterdam 1989) 49-64.

Theo van der Meer, Sodoms zaad in Nederland. Het ontstaan van homoseksualiteit in de vroegmoderne tijd (Nijmegen 1995) 413-436.