Thousands persecuted and convicted

In 1911, article 248bis entered the Dutch Penal Code. This article criminalized sexual activity wither a minor (under 21) of the same sex, whereas for heterosexual sexual activity, someone under 16 was considered a minor by law. Until 1971, when 248bis was repealed, thousands of men and dozens of women were arrested and in many cases convicted for (alleged) violation of the article. Also in Utrecht.

Code Pénal

From 1811 to 1911, Dutch criminal law was based on the French Code Pénal and homosexual activity in the private sphere was not criminalized (see webpage ‘1816 Thirty citizens of Utrecht convicted‘). However, many men were still arrested and convicted on the grounds of public indecency (sex that others (could) witness).

In the course of the 19th century, several attempts were made to renew the penal code. Proposals to re-criminalize sodomy failed. The liberals, who usually held the majority position in government at the time, believed that the government should not interfere much with what happens behind closed doors. However, the penal code was expanded in 1886 with articles to fight pornography and sex with minors (under 16).

‘Growing immorality’

In the late 19th and early 20th century, two developments increased the chance of new criminalization of sex between two men or two women. The confessional parties, who mainly viewed homosexuality as a sin against God’s commandments, gained more political power. In addition, there was a widely shared concern about ‘growing immorality’ which was said to be particularly prevalent among the lower class in the Netherlands. Mainly Christian politicians were offended by the writings and lectures by doctors such as Arnold Aletrino and Lucien von Römer and the lawyer Jacob Anton Schorer. They argued that homosexuality is usually innate and that therefore gay people should be treated as equals.

Article 248bis

From 1908 to 1913, the Christian political parties held the ruling majority position in government. ‘Kabinet-Heemskerk’ came up with plans to renew and tighten morality legislation. However, the proposal by the Roman Catholic Minister of Justice Nelissen did not contain an article that criminalized homosexuality. In fact, only when his fellow party member Regout succeeded Nelissen as minister as a result of him falling ill, such an article came into being. The final text of the article read; ‘An adult who commits fornication with a minor of the same sex, whose minority he knows or should reasonably suspect, shall be punished with imprisonment not exceeding four years.’

Protests

The proposal provoked a lot of protest, both within parliament and outside of it. Opponents in the House of Representatives and the Senate saw the article as a first step towards a total criminalization of homosexuality. They disagreed with the assumption that seduction would always emanate from the adult. They pointed to the danger of blackmail. Furthermore, they believed that Christian morality should not be decisive for national criminal law. Minister Regout countered by arguing that he wanted to protect the youth, because ‘it is precisely the older homosexuals who make neglected and morally weak boys, preferably between the ages of 16 and 18, victims of their lusts by means of seduction’.

Jacob Schorer and Hubertus Johannes Schouten (under the pseudonym ‘Mr. G. Helpman’) tried to get members of parliament to reconsider using pamphlets in which they refuted the seduction theory and defended the congenital nature of homosexuality. These efforts were in vain; both Chambers adopted the bill, including 248bis, and the law came into effect just a month later (June 1911).

First Dutch gay organization

Some opponents of 248bis feared that the law would cause homosexuals to organize and that more would be written and spoken about homosexuality. They were right. In 1912, Schorer, together with doctors Arnold Aletrino and Lucien von Römer and the writer M.J.J. Exler founded the Dutch Section of the Scientific-Humanitarian Committee (Nederlandsche Afdeeling of the Wissenschaftlich-Humantäre Komitee (WhK)), the first Dutch gay organization and therefore the predecessor of the COC. The WhK, founded in 1897 by Magnus Hirschfeld and others, fought against the German law section 175 that banned homosexuality among men.

Until 1940, Schorer – almost by himself – continued to fight against 248bis by distributing pamphlets, starting petitions, supporting gay-friendly literature and sheltering and advising gay men and lesbian women. After the war, the COC took over.

Thousands of victims

At least 5,000 men and about 50 women have had to appear in court on charges of violating 248bis. Just over half were convicted, with an average of three to six months in prison. Many others also spent time in jail as in principle, arrest led to preventive detention. Most of the court cases occurred between 1945 and 1965.

In many cities, the police pursued an active policy to arrest possible offenders. Detectives were on the lookout at homosexual meeting places. They raided bars, meetings of informal circles of friends and after the war COC clubs. Suspects had to go to the police station, where officers noted their name and description and even informed parents, landlords and employers. In short: they forced many LGBTI+ people into a hidden life with a constant threat of police interference and the subsequent threat of losing family, housing or career. 

First Dutch gay demonstration

In the 1960s, the idea that the national government should be moralist changed. Protestant and Catholic psychiatrists such as Tolsma and Trimbos rejected their previous negative view of gay relationships, as well as the idea that young people became homosexual through temptation. In 1969, the Speyer Committee of the Dutch Health Council came to the same conclusion.

During this time, young gay and lesbian people made themselves heard. They did not have access to the COC as minors, so they set up Student Working Groups on Homosexuality in various cities, including Utrecht. There were also initiatives to set up their own societies, Pann emerged from this in Utrecht. On January 21st, 1969, more than a hundred young people – with a large delegation from Utrecht – held the first gay demonstration in the Netherlands, demanding the abolition of 248bis. The article, that had caused such great suffering for 60 years, was finally removed from the Penal Code in 1971. 

Maurice van Lieshout