Beiträge zur Rechtsgeschichte Österreichs, 9. Jahrgang, Heft 1/2019

This book contains the proceedings of a conference on “sexual deviance from the Middle Ages to the 19th century” held in Brno/Brünn in the Czech Republic from September 21st to 23rd 2017 . This issue had not been treated in many previous meetings of the criminality research group of German speaking historians since 1990. Each of the papers presented at the Brno conference is briefly introduced in English (cf. the abstracts for each following article in the book).

Keywords: criminality, deviance, Middle Ages to 19th century, sexuality

The chapter observes the function of early modern police ordinances regarding the criminalisation of sexual deviant behaviour, the legal differentiation of sexual offences and the expansion of sanctions. It identifies two periods of more intense regulation in the 16th and 18th centuries related to the reformation, which intensified criminalisation and social control, and the reforms of ‘enlightened absolutism’ that intended a decriminalisation as well as an increase in birth rates. An exemplary analysis of criminal justice in the electorate of Mainz investigates the enforcement of the ordinances and the interdependencies of ‘gute Policey’ and judicial practice that also provided opportunities for the subjects to use criminal justice and to negotiate sexual deviance.

Keywords: administrative law, criminalisation, police ordinances, sexual offences

In the libraries, archives and registries of German imperial, bishop's and residence cities as well as other imperial territories in the early modern period, which was even poorer in media, there were quite exciting things to read about our topic “Sex and good Policey”. As a first orientation in the field of sexual offences, the database on the printed works of the 17th century in the German-speaking area (vd17) provides 18, 28, and 38 hits, respectively, for the relevant search terms (in German) “adultery”, “whores”, and “fornication”. The synonym “Affairen” for sexual adventures, on the other hand, was misleading in the context of "good" Policey, since it was used exclusively in the context of political processes. We did not want to leave it at these quantitatively manageable proofs and consulted the eight source works on the “good” Policey in Southern Germany composed at the Chair of Regional History in Erlangen. The family, midwife, health, hygiene, drinking, security, and criminal ordinances edited there, above all in the vicinity of the imperial cities, provided timely and source-related evidence for our analysis of sexuality in early modernity.

Keywords: good policy, imperial cities, midwives, ordinances, sex, whores

This paper discusses the origin of the idea of chastity and sexual rigorousness in relation to the society of the Slovak territory in the early Middle Ages. The oldest sources are the so-called Moravian-Pannonian Legends, namely the Life of Constantine and the Life of Method. The above-mentioned outlook of the author is to be found in Moravian legal texts where sexual crimes and their punishments are of great importance. While the idea of chastity and sexual rigorousness had an important place in legal texts of the 9th century, this topic is represented rather briefly in the legends. The opposite can be observed in the period of the dynasty of Arpád in the Hungarian Kingdom, where we encounter two legends originally based on the above-mentioned ideas. To us, these legends are known as the Legend of Saint Emeric and the Legend of Saint Margaret. Emeric was described as a monarch’s son who decided to remain a virgin for his entire life. He took this decision despite his status as the heir to the throne and a married man. Margaret spent her short life in a monastery and the legend does not only describe her repugnance to marriage, but also her unattractive looks and disregard towards personal hygiene.

Keywords: Arpádians, chastity, legends, Moravia, sexual rigorousness

The study deals with sexual offenses in the written sources of the Late Middle Ages and the Early Modern Age in the present Czech Republic and Slovakia. It evaluates which actions fall into this category and defines their content under current criminal law. Similarly, it deals with punishments. Then it analyzes specific sources and evaluates the proportion of these deeds compared to other crimes. It provides a view of the society and the functioning of the law.

Keywords: court records, early modern period, Late Middle Ages, punishments, sexual crimes

The study examines typical patterns and individual strategies of urban courts in Hungary in the second half of the 16th century when dealing with sex crimes. Secular authorities took over control of sexual behaviour and marital problems, previously exercised to a large extent by the church. The councillors had a relatively wide scope of measures and punishments that they could choose from and decided according to the individual circumstances of each case. Most cases involved fornication and adultery; other sex crimes appeared in court more rarely.

Keywords: 16th century, Hungary, punishment, sex crimes, towns, urban judiciary

The article shows how sexuality is described in the Chronicle written by Count Froben Christoph of Zimmern (1519–1566). Besides many other issues there are about 200 stories concerning sex. There are sex stories of emperors and kings, followed by a series of dukes, counts and other noblemen, bishops, abbots, capitulars, monks, nuns, and priests, but Froben Christoph also tells stories of peasants, burghers, and businessmen. There is no other German chronicle and no other nobleman of this time who offers so much information about sex. The main intention of these stories firstly was simply to amuse, secondly (and rarely) to denunciate political or private enemies. The article is not primarily interested in the degree of reality of such sex stories but rather in the way the Chronicle talks about sex. As far as this discourse is concerned, the Chronicle gives an excellent impression of what noblemen were talking about when sitting together with their fellow-noblemen. This is the focus of the following text: to present typical examples of such sex stories, and to add some reflexions concerning these examples. There are some really surprising results: Not only male but also female lust was accepted as normal and sometimes the Chronicle even approves of women who have affairs when they have “difficulties” with their husbands.

Keywords: frontiers of acceptance, Germany 16th, century sexual behaviour

In early modern hospitals, it was generally the case that only married couples were allowed to be sexually active, but those responsible feared that particularly younger women and men could have children for which the hospital would have had to provide. It is very difficult to find archival sources relating to this topic, which suggests that there was usually a negative view of generally life-affirming sexuality. Under the guise of secrecy, sexual activities largely had to take place in the privy, in stables, in the field and the grass, in church, etc. and those involved had to make sure that nobody was watching them. As they could get caught in the act, they often kept their clothes on and the sexual act had to take place quickly. This contribution uses examples to demonstrate that not only sexuality played a significant role in hospitals – which also pertains to penitentiaries, for instance – but that love was also quite important. It should not be denied that many inhabitants were raped and abused, particularly women with disabilities. If a man and a woman wanted to get married, they were usually prevented from doing so because they did not have any possessions and because of their lack of material goods. If inhabitants wanted to marry someone in the hospital, they had to give up their benefices. Sex between unmarried inhabitants in the hospital could cause a scandal, which could lead to a reduction of alms for the entire house. Despite the negative view of sexual activities in the hospital outlined in this paper, it can be assumed that pleasurable sexual intercourse took place both between the inhabitants as well as between the inhabitants and the staff.

Keywords: burgher hospital, Early Modern Times, general public, sexuality

The article examines if and with which terms sexual practices that were contemporary interpretable as "sodomite", i.e. “sex against nature”, were discussed in marriage proceedings before ecclesiastical courts. The source basis consists of 1,749 main proceedings, which were researched, transcribed and recorded in a database within the framework of two research projects, financed by the Austrian Science Fund between 2011 and 2018. After a brief overview of the legal norms, we focus on those 20 marriage proceedings in which wives and husbands spoke before the consistories about the "unnatural" sexual practices which had been demanded of them. Specifically, we analyze three marriage proceedings in which the charges went beyond the heterosexual framework and three marriage proceedings in which wives explicitly accused their husbands of forcibly carrying out "marital duties". It is noteworthy that, with one exception, the allegations were made only by wives. It is also noteworthy that, again with the exception of one married couple, all these married couples lived in 18th century Vienna and that at one fifth, nobles are overrepresented. In relation to all 444 marriage proceedings in which spouses accused each other of sexual misconduct, it becomes apparent that the allegations of sodomy and marital rape were more likely to lead to a temporary separation, however there was not one single case in which the consistorial councils decided that this accusations were sufficient to divorce the couple from bed and board. Although "sodomite" practices, especially those that transcended the heterosexual framework, were punishable by death, we found no evidence of exchange of information between the ecclesiastical courts and secular criminal justice.

Keywords: divorce, early modern Austria, gender history, law, rape, sodomy

From the end of May to the beginning of June 1749, a trial took place at the Gutenhaag Provincial Court in Lower Styria, which is to be considered exceptional in many aspects, both at its time and examined from an historical perspective. Exceptional was the charge, exceptional the court trial, exceptional was the verdict, which was written down in both German and Slovenian, becoming thus the first legal document of its kind in the latter language. Two small peasants of advanced age and both drunkards of regional renown were put on trial, accused of sodomy. The trial displayed their completely different attitudes towards the accusation; it displayed furthermore diverse social micro-dynamics that led towards the accusation, independently of the alleged sexual practices of the defendants. And finally it displayed different views of the authorities upon the crime, which according to the ruling law was to be punished with the death sentence: Although the judge sentenced them to banishment from their homeland Styria and to hard labour, Empress Maria Theresia, whose verdict was final, demanded the capital penalty. Her verdict clearly was entirely of a premodern Catholic mode, along which a man is perceived only in terms of his expediency: Man lives not because of him and from himself, but indeed by his Creator only and in the service of the God-given ecclesiastical and political authorities. With their deviant sexual practices, their sodomite crime, the two poor man had gone against their God and their appointed authorities, and therefore had to die.

Keywords: Early modern history, legal history, Inner Austria, Styria, sodomy

The article deals with heavy sexual criminality before town courts of justice in the Kingdom of Bohemia in the course of the 16th and early 17th centuries. For the purpose of this study, this includes sexual delicts and delicts against marriage punishable by the death penalty according to the law of the period studied. This penalty was applied to cases of rape (kidnapping of a woman) (raptus), violation, violation of a child (stuprum violentum infantis), resp. sexual abuse, bigamy, incest, sodomy in the form of sexual contact with an animal, sodomy in the form of homosexuality and other forms of it (transsexuality, transvestism, exhibitionism). Amongst the several thousand recorded criminal cases decided by the the investigated courts of justice during the period studied, such heavy sexual delicts are found only in a few dozen cases. In relatively higher numbers appear only bigamy, sexual contact with an animal and violation. Other heavy sexual delicts are recorded only sporadically, or in isolated cases.

Keywords: 16th century, courts of justice, Kingdom of Bohemia, sexual criminality, town

Arnest's provincial statutes from 1349 represent the first codification of medieval church law issued in the territory of the historical Czech lands. Several of the total of 86 articles include rules on matrimonial law, the prohibition of clerical concubinage and serious sexual offences. The aim of this paper is to introduce these offences and the penalties imposed on their perpetrators.

Keywords: adultery, canon law, clerical concubinage, Czech lands, medieval church, sexual offences

The crime of fornication, which was directed against all sexual activities outside marriage, can first be found in the Constitutio Criminalis Theresiana of 1767/68. It applied to all Crown Lands of the Habsburg Empire and provided for severe penalties. The Josephine Criminal Law of 1787 eradicated in an enlightened way offences such as premarital sex, anal intercourse or masturbation, while adultery could only be punished as an offence upon complaint. In the Archbishopric of Salzburg there was no criminal law codification until the end of the Old Empire, which is why the Peinliche Halsgerichtsordnung of Charles V of 1532 remained subsidiary and was supplemented by penal ordinances. In addition to criminal laws, police legislation also played a decisive role in sanctioning sexual offences. Among other things, the article attempts to trace the gap between legal norm, everyday behaviour of the population and judicial action. The most frequent court cases of prohibited sexual practices concerned unwanted pregnancies or births. While in cases of simple fornication only a relatively small fine was imposed, the sanctions for third-time offenders or for adultery were much more severe. This led to different evasion strategies on the part of those affected. The evaluation of procedural files of the Salzburg Hofrat showed that men are primarily sentenced to public humiliation or fines for their qualified sexual offences, while women are often sentenced to long prison sentences and labour penalties.

Keywords: (crime of) fornication, Habsburg Empire, punishment, Salzburg

Infanticide was the most common violent crime committed by women in the early modern period. Until the 18th century the judicial authorities showed only limited interest in the motivations behind this crime. It can be assumed that usually there existed a whole range of factors, which could be relevant in different intensity depending on the individual case. In the early days the fear of punishment played an important role; in the worst case the women were threatened with criminal sanctions and ecclesiastical penalties. In the scholarly and public discourse during the age of enlightenment, the feelings of dishonour and shame were seen as the main reasons for this crime. Finally, economical motives were increasingly considered to be important for committing an infanticide. All these various motives became particularly clear when an accused woman already had born a child out of wedlock.

Keywords: criminal history, early modern period, infanticide, women’s history

Sexual intercourse between Jews and Christians was severely punished by the courts during the Middle Ages and the Early Modern Period. However, in many cases the allegations had been made up. The punishment was usually a high fine for the accused and not the death penalty mentioned in some legal texts. Evidence comes also from nonlegal sources, such as chronicles and other literary documents (e.g. the Meistersang). These sources do not refer to real incidents but voice unvarnished dislike or even outright hatred toward the Jews, instigated by religious fanaticism and greedy magistrates.

Keywords: early modern Europe, hatred of Jews, Jewish-Christian Relationship, Meistersang, sexual intercourse

In the 18th century, touring companies were organized as family enterprises, led by a male or female principal. As these troops often played only briefly in any given location, its members were reckoned as itinerant or “traveling folk“ (Fahrendes Volk). Most of the players belonged for long periods of time to a stable company and made an effort to organize their lives according to bourgeois norms, but their reputation of wanderers endangered their mobile livelihoods and lifestyles. They were often held to be “dodgy individuals“, suspected of profligacy, vanity, venality and laxity. This alien quality or “otherness“ did not correspond to the self-image and self-description of the players themselves, but formed the context for their self-representation and for the image of traveling companies that long dominated scholarship. The autobiographies of the German actress Karoline Schulze-Kummerfeld, which were written in Linz in 1782 and in Weimar in 1793, respectively, form the center of this essay. In the earlier text, which assumed an apologetic character, the author constantly emphasized her virtue and integrity and wrote not only about the temptations to which she was exposed but also about her standards of love and marriage. Many of her views circle around concubinage. A close reading of her work reveals that the players had their own independent notions of sexuality and deviance, which were nonetheless closely entwined with the surrounding, normative society and its values.

Keywords: Bourgeois morality in 18th-century Germany, German travelling theatres, mistresses („Mätressen“), Karoline SCHULZE-KUMMERFELD (1742–1815)