These early documents indicate the outlines of the debate on sexuality possible in 1869 Berlin: the assumptions made by Ulrichs, Kertbeny, and Westphal about sexuality reveal the intellectual choices available in mid-nineteenth-century Germany.
These documents were written in the wake of an event that might seem entirely unrelated to questions of sexuality: the otherwise largely forgotten Austro-Prussian War of 1866. Prussia trounced Austria in this war, revealing to a startled Europe its revivified military prowess. The Hohenzollerns of Berlin annexed Frankfurt, Hanover, Hesse, Nassau, and Schleswig-Holstein to their already considerable German possessions beyond Prussia itself, while the Habsburgs of Vienna lost forever any influence in the Germanic realm outside of Austria. With Otto von Bismarck (1815–1898) at the helm, Prussia began to unify the rest of the Germanic principalities as the North German Confederation, which would form the basis of the German Empire established in 1871 at the close of the Franco-Prussian War. The Habsburgs, meanwhile, weakened by their loss, restructured their possessions in 1867, shifting their attention toward the Balkans. Faced with a mounting insurgency, they agreed to grant the Hungarians autonomy and created the Austro-Hungarian Empire.
In Epistemology of the Closet, queer theorist Eve Kosofsky Sedgwick intuits a link between the emergence of the vocabulary of homosexuality in 1869 and the foundation of the German Empire in 1871.11 In fact, sodomy played a role in the momentous political changes following the Austro-Prussian War. Both new governmental entities, Austria-Hungary and the North German Confederation, needed to revisit their legal codes as they restructured themselves. Sodomy was a flashpoint for legal discussions concerning the role of the state in crimes of the flesh. Until the beginning of the nineteenth century, most of German-speaking central Europe relied on the 1532 legal code of Charles V of the Holy Roman Empire (1500–1558), which had established the penalty of death by fire for a person who slept with an animal, a man who slept with a man, or a woman who slept with a woman. By the Enlightenment, legal theorists, especially Cesare Beccaria (1738–1794) in his work Dei delitte e delle pene (Of Crimes and Punishments) of 1764, began to question the overlap between church and state, calling for the decriminalization of many sexual deeds.
Frederick the Great (1712–1786), hoping to modernize the laws within Prussia, encouraged scholars to think about the theoretical basis for legal reform. Such canonically important texts as Immanuel Kant’s “Was ist Aufklärung?” (What Is Enlightenment?) emerged in response to a footnote in an anonymous piece—actually by Johann Erich Biester (1762–1814)—questioning the state’s role in marriage. Eighteenth-century German intellectuals saw that the role of the state in regulating personal, gendered, and sexual behavior pertained directly to modernity and the Enlightenment.12
Prussian legal thinkers of the eighteenth century did not eliminate the role of the state from marriage, nor were they willing to follow Beccaria and decriminalize sodomy. Some countered Beccaria’s arguments that sodomy was merely a sin and of no interest to the state by arguing that it diminished the country’s population and thus harmed it. Prussia’s sodomy laws remained on the books, although the death penalty for sodomy was repealed in 1794.13 As the nineteenth century progressed, sodomy laws took on national significance. Louis Crompton demonstrates how England prided itself on the fact that it, in contrast to decadent France, prosecuted sodomy offences.14 Presumably, similar motivations justified the hard line on sodomy in Prussia and Austria.
Outside of Prussia and Austria, changes in German law did emerge, however, inspired by reforms in France. In post-revolutionary Napoleonic France, Beccaria’s Enlightened reasoning gained traction. Jean-Jacques Régis de Cambacérès (1753–1824) had the task of restructuring the French civil code after the French Revolution; it came to be known as the Code Napoléon. Removing many feudal relics in the legal code, it also decriminalized private, consensual, noncommercial sex between unmarried adults, even adults of the same sex. When Napoleon’s armies swept through much of Europe, he installed his new legal code; many principalities kept or emulated parts of them even after the French left. Baden, in southwestern Germany, retained the Code Napoléon, although legislators there altered many aspects of it, in order to grant women more protections than were available in the French original, which—for all its liberality in sexual matters—remained quite patriarchal.15 Those Prussian lands west of the Rhine that had fallen under the direct control of Napoleonic France also kept the Napoleonic legal code when they returned to Prussia, meaning that even Hohenzollern possessions had quite different legal codes. Wurttemberg and Hanover retained the spirit of the Napoleonic laws, criminalizing only public indecency rather than sexual acts between consenting adults.16
In Bavaria, Anselm Feuerbach’s criminal code of 1813 attempted to delineate clearly between the “immoral” and the “illegal” and correspondingly decriminalized sodomy entirely. The 1813 annotations to the new Bavarian penal code declared, “as long as people through lewd behaviors transgress only their internal duties to themselves—the commands of morality—without hurting the rights of others, nothing is determined by this present law book; self-abuse, sodomy, bestiality, consensual unmarried sex are all serious transgressions of moral commands but as sins they do not belong to the sphere of external legislation.”17 Isabel V. Hull notes that Feuerbach consistently mentions sodomy when he lists examples of sexual misdemeanors that should be understood as sins, not crimes. For Feuerbach, sodomy represents, according to Hull, an “archetypal example of the liminal delict, the one that defined the line between two categories.” While Feuerbach eventually recanted and proposed revisions to his own legal code in 1824 that recriminalized male homosexuality, his subsequent conservative revisions did not become law.18
Thus, the German-speaking world was at a cross-roads regarding crimes of the flesh in general and sodomy in particular when legal experts in the North German Confederation and Austria-Hungary began to review their penal codes. Both Prussia and Austria continued to criminalize sex between men, along with other carnal delicts, while a broad swath of German principalities, including Prussian possessions west of the Rhine, had adopted Enlightenment reforms regarding sex in their legal codes. For many interested in the law, sodomy became a primary exhibit in the public debate concerning whether the new legal codes of central Europe would be liberal, secular, and modern—or not.
In preparation for the establishment of a unified code of penal law in the North German Confederation, the Royal Prussian Deputation for Public Health had investigated the matter of sodomy laws, and recommended that the paragraph criminalizing sodomy be dropped, noting that the law did not criminalize “degenerate” sexual acts between men and women or between women and that it similarly left masturbation up to the conscience of the individual.19 The list of authors of the report included such scientific luminaries as the Berlin physician and scientist Rudolf Ludwig Karl Virchow (1821–1902). The minister of justice, Gerhard Adolf Wilhelm Leonhardt (1815–1880), apparently initially concurred with the commission and had himself adopted a liberal policy on sodomy in Hanover in 1840.20
The restructuring of the Habsburg Empire as the Austro-Hungarian Empire was similarly the occasion for rethinking the legal code. In 1856, paragraph 129 I b of the Habsburg Empire had prohibited “lewd behavior [Unzucht] with the same sex,” calling for prison sentences lasting from one to five years.21 Krafft-Ebing reports that in the 1860s the government, relying on the advice of a medical commission, proposed the elimination of these penalties for sodomy, among other points arguing that “from various sides, it is maintained that the action prohibited by this paragraph is a natural need for a class of people.”22 Hubert Kennedy reports that the minister of justice, Anton Emanuel von Komers (1814–1893) had proposed decriminalization on June 26, 1867. By 1870, however, a new minister of justice, Eduard Herbst (1820–1892), had rejected the proposal.23
Ultimately, the efforts of all those working to decriminalize sodomy were in vain. The Austrian efforts to decriminalize same-sex acts were rejected and the only “reform” was the rewriting of the language to make sexual acts between women—as well as those between men—illegal. The Prussian government chose to ignore its own commission, concluding that sodomy “exposed such a degree of degeneration and degradation and was so dangerous for morality that it could not remain unpunished.”24 Ulrichs assumed that the law remained in place in order to