Die bürgerliche Shari‘a im Zeitalter der Aufklärung

Ein immer wieder beliebter Topos unter „islamkritischen Linken“ (Horst Pankow, Jungle World) ist die Gegenüberstellung von bürgerlichem Rechtsstaat und Shari‘a. Ich hab das hier schon einmal an einem Beitrag des Morgenthau-Blogs kritisiert. Wie die Leute auf so einen Unsinn kommen, weiß ich nicht genau, aber es scheint etwas mit ihrer bestürzenden Unkenntnis der europäischen Rechtsgeschichte zu tun zu haben. Diese Ignoranz nimmt zuweilen so unfassbare Ausmaße an, dass etwa der Islamwissenschaftler Ralph Ghadban in der taz unwidersprochen behaupten kann: „in Europa wurde Homosexualität nie mit dem Tode bestraft“. Um diese Lücke etwas zu füllen, habe ich mich dazu entschlossen, hier ein paar Artikelauszüge über die Sodomiterverfolgung im Zeitalter der bürgerlichen Aufklärung zu posten. Beginnen möchte ich mit einem Beitrag von Theo van der Meer, der jene am Beispiel einer der wichtigsten Finanz- und Handelsmetropolen der damaligen Zeit, der Stadt Amsterdam, untersucht hat:

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In 1730, for the first time in its history, the Republic of the United Provinces saw the heavy persecutions of Sodomites. These persecutions started in January of that year with the complaint of the Custodian of the (former) Cathedral of Utrecht about unnatural practices taking place in the building. The judicial authorities in this city went into action: two soldiers were arrested and executed in secret. The confessions they had made led to the arrest of the former soldier and footman, Zacharias Wilsma, who had traveled throughout the Dutch Republic. He revealed to the authorities the existence of a network of sodomites, with branches in all major cities of the Republic. Wilsma’s confessions produced a snowball effect: in different cities numerous suspects were arrested and put on trial. The persecutions reached a climax in the summer of 1730, but investigations went on as late as 1737. However, the most notorious of these persecutions took place in 1731, in a small village in the north part of the country. On 24 September 1731, twenty-two boys and men from this and nearby other villages were executed by the country squire Rudolf de Mepsche.

When the persecutions started, an Edict against sodomy was promulgated in the Province of Holland. Modified in 1764, it was kept in force until 1811, after the annexation of the recently founded Kingdom of Holland by France. Under this bill, sodomites were prosecuted, sometimes incidentally, sometimes in sequences of trials, especially in Amsterdam, by far the largest and most powerful city in the Republic. Between 1730 and 1811, at least two hundred and twenty-eight men and women, suspected of sodomy, sodomitical acts or of compliancy, stood on trial in two-hundred thirty-six cases. Of those two-hundred twenty-eight, one-hundred fifteen men were sentenced by default to lifelone exile.

[…]

The Lawsuit

Before going into any detail about the procedures against sodomites, the interpretation of the term used by the eighteenth-century court should be explained. (The question of whether or not an eighteenth-century sodomite was a homosexual in the modern sense of the word is considered elsewhere in this article.) Up until and throughout the seventeenth century, „sodomy“ in common language and legal comments stood for any sexual technique that was not directed to procreation: oral and anal intercourse with male or female, masturbation, bestiality, and even sexual intercourse with Jews and Saracens. In the eighteenth century, the courts used a more limited interpretation of the term. It considered sodomy exclusively as anal intercourse (or bestiality), and only then when the act had been committed to full: namely penetration and ejaculation in the body of a partner. […] Sodomites themselves called all their acts sodomy, perhaps due to the common use of the word. For example, in 1764 Johannes Oudendijk told that he had committed sodomy. Later he specified that he and his accomplice had thrust their naked bodies against one another and „both of them had shaken out their own seed.“ Confronted with the legal definition of sodomy, he had said that he „had considered the filthy matters mentioned before as the sin of sodomy.“ A year later, Hendrik Eelders said that he had believed, „that the shaking out belonged to the real sin of sodomy.“ To avoid such confusion, the Judges sometimes drew a distinction between „the real sin of sodomy and other filthy matters.“ The difference was important because there was a correlation between the kind of act that a suspect confessed to and the punitive measure imposed. Only the „real sin of sodomy“ was punishable by death.

[…]

One of the main legal problems the court confronted in these cases was the fact that sodomy left no traces. There was no corpus delicti. To condemn a suspect, his confession was vital. To achieve this, the Bailiff confronted the suspects with witnesses or accomplices or used their statements. Those statements were part of the evidence, but to send a suspect to the scaffold, his confession was necessary. The absence of one of the components, the confession or otherwise, did not automatically mean the dismissal of the suspect, but did exempt him from execution. In 1765 Hendrik Tulken denounced himself to the court and confessed to anal intercourse, but none of the accomplices he mentioned were found and he was only given a prison sentence.

To obtain the confession of the suspect, the court had torture at its disposal. Allegations have been made that people suspected of sodomy were tortured to the extreme and confessed to things they had never done. That seems, however, not to have been the actual case. The kind of torture used in Amsterdam was limited to shinscrews and whipping. From 1765 onward, whipping was the only kind of torture applied to sodomites in Amsterdam. Torture was also subjected to certain rules. It was only allowed when the Bailiff had gathered so-called „full half proof.“ Though the meaning of this was not always clear, in cases against sodomites torture was until 1795 only applied when eyewitnesses or accomplices had testified of anal intercourse. Furthermore, the Bailiff had to ask the permission of the Aldermen before a person could be ordered tortured. Once a suspect had admitted his crimes under torture, he had to resubmit his confession „free from pains and ties.“ Indeed, such was the question put forward to the confessor immediately after he had been released from the instruments of torture and again at the beginning of the next examination. So a kind of safety valve was built in — for what it was worth. Those who revoked a confession could be tortured again.

In 1764, Hermanus van Werkhoven confessed to anal intercourse. A week later, he revoked part of his confession and only admitted to mutual masturbation. Threatened with shinscrews again, he repeated his former confession. Explaining his revocation, he said that „he had remembered the sadness that would befall his poor wife if he was punished publicly by death, as he understood that this had to follow the crime of sodomy: on the contrary, he thought that if he confessed nothing but the shaking out, he was only to be confined for the rest of his life, where he could see neither sun nor moon.“

Torture applied to sodomites in fact seldom resulted in confessions. The Aldermen in Amsterdam gave their approval twenty times to torture people suspected of sodomy. Four men confessed before it had been applied. Only four others confessed under torture. Lawsuits in the eighteenth century were quite intimidating, however, and torture was often not a necessity to „convince“ suspects of their crimes. Besides, while society at large considered sodomy to be a most abominable crime, it is no wonder that those involved shared this concept, especially when brought in court and even more after a confession. Once a prisoner had confessed to sodomy, he often became very cooperative and up to the very moment of execution impeached accomplices or mentioned the names of people whose reputation he knew. He was encouraged to do so by the Bailiff and the clergymen that accompanied him during his last hours.

Some sodomites took this negative self-conception to its ultimate point by denouncing themselves to the court, like Hendrik Tulken mentioned before — though his action may have been a complicated attempt to commit suicide. It sometimes happened that people accused themselves of capital crimes they had not committed in order to be executed. A more obvious case of self-denouncement was that of the twenty-two-year-old Pieter Didding and the twenty-three-year-old Willem Knieland. They stood on trial in 1743, some time after they had committed sodomy in the toilets of the orphanage where they lived. Pieter told his judges that he „committed it this one time and never again and also had not given any thought of doing it again, but that after the committed act, he had become very sad and that his conscience could not rest about it and such was the cause that he out of remorse had made it known to the fathers of the house and that the thing mentioned above had happened some five weeks ago and that he had since prayed day and night to the Lord to prevent him from such sins and that he had only been seduced to this attrocious fact by the before mentioned Willem Knieland.“

The Verdict and The Punitive Measures

In the eighteenth century most legal sources — Roman law, Mosiac law, Jurisprudence, Legal Comments — conferred the death sentence on sodomy and stated that sodomites should be burned. The Edict promulgated by the State of Holland 21 July 1730, bore out the capital punishment, but left the method of execution to the discretion of the Judges. As mentioned above, only anal intercourse was punishable by death and no difference was made between the active and the passive role. Of all the people on trial for sodomy in Amsterdam between 1730 and 1811, sixteen men died at the scaffold, the last one in 1765.

In the eighteenth century an „execution day“ was held in Amsterdam two or three times a year, always on a Saturday. All the people sentenced to public punishment — capital or otherwise — were brought forward on that day. […]

Usually in the Republic, the bodies of the executed criminals were not buried but, like elsewhere in Europe, sent to a gallowfield — in Amsterdam the Volewijk — (Birdsdistrict), „given up to the influence of air and the birds of heaven.“ The exposure of the corpses was meant to set an example to potential criminals. Besides, the existence of standing gallows, mostly outside the city walls, showed outsiders that this was a law-abiding city. […] The corpse of a sodomite obviously was not considered to be an ornament to the majesty of the authorities. The Edict of 1730 stipulated explicitly that the executed sodomites were to be either burned or thrown into the sea. In Amsterdam the executed sodomites were thrown into the deepest part of the River IJ. After all, sodomy was also a crimen nefandum, a mute sin, of which it was better not to be reminded.

The penalties for sodomites varied, depending on the kind of evidence and the precise acts they were accused of. Those that confessed only to mutual masturbation or against whom there was no complete evidence of the „real sin“ were usually confined for decades. Others, only charged with but denying mutual masturbation, were exiled or provisionally released.

In the men’s prison in Amsterdam, prisoners manufactured powder, used in the paint industry, from a red Brazilian wood. The sodomites were not, however, allowed to take part in labor. They were kept in solitary confinement in the cellar of the building. It seems as if for these prisoners the same considerations were in force as for those sodomites that were executed. They were hidden. […]

The Prison Archive has only been partially preserved. What remains tells us that of twenty-eight sodomites confined in prison in Amsterdam between 1791 and 1811, twelve died in their cells. But some, like Jan Jansz, were to spend a long life down in that cellar. In 1741 at the age of seventeen he was confined for the rest of his life. He died fifty-seven years later, in 1798. Jan Schuyl, confined for fifty years in 1761 died in 1806. Jan Hikke, imprisoned in 1764, was released in 1804.

Attempts to break out of prison were not unusual. Indeed, the sodomite Jan Mendel escaped from prison in 1745 after failing at a first attempt in 1740. In 1792 two sodomites escaped, but one of them returned a week later and asked to be confined again. Sodomites that were still imprisoned in 1811 when the French Penal Code came into force were not automatically released, though some of them received reduced sentences.

When at the beginning of June, 1730, deliberations commenced in the States of Holland upon the Edict against sodomy, it appeared that a lot of suspects had taken refuge across the border. Lots of others, who were not even suspected, had also taken refuge. The Edict stipulated in Clause Five that refugees against whom there was evidence of sodomitical crimes had to be summoned three times, and when they did not appear in court should be sentenced by default to lifelong exile. According to Clause Six people that had disappeared without apparent reason within three months of 15 May 1730, were to be summoned and sentenced likewise. It was precisely this last clause that necessitated a modified Edict in 1764, when once again heavy persecutions were taking place in Amsterdam. At the request of Amsterdam, from that time on Clause Six could be applied to those disappearing at times when sodomites were arrested.

The Persecution of Sodomy

The figures mentioned above about sodomites prosecuted in the eighteenth century in Amsterdam show that there never has been a systematic persecution of them. When in 1730, 1764, and 1776 sequences of trials took place, they were the result of a snowball effect. It always started with the more or less accidental arrest of a sodomite and his subsequent confessions. People could not be arrested on the merest suspicion. As previously stated, the figures should be considered provisional, and hardly anything is known about preliminary examinations followed by discharge. […]

On the other hand, repression is not measured by figures only. In January 1761, Jacob Bicker Raije noted in his diary:

A boatman from Leiden has been fished out of the water near the Papenbridge, who had been missed for six weeks, as he was to marry a young lady who worked in a shop at the New Market and with whom he at that time was at the City hall to enter their names in the registry, when two brothers of the young lady seized the prospective bride, saying we will not allow you to marry a sodomite. At which the young lady struggled a little, but went with her brothers. And he, not to fall in the hands of the mob, as he was suspected there about by many people and perhaps felt guilty in his conscience, without speaking silently slinked away and has been missed from that time on and has thus been found perished.

In 1763-1764, a practice began to evolve of deliberately entrapping sodomites. This was first carried out by four night watchmen who started their activities in public toilets. […]

Children and Women

Anal intercourse used to be punished with death. However, age could be an extenuating circumstance, and no man under twenty was condemned to death because of sodomy. In the period studied eight boys charged with sodomy varying in age from eleven to eighteen stood on trial in Amsterdam. One of them was discharged. In 1746 a seventeen-year-old boy was whipped on the scaffold and forced to watch the hanging of his mature accomplice. He and others suffered an average confinement of almost forty years. Even the eleven-year-old was confined for twenty years.

[…]

In 1792, for the first time a woman, Bet Wiebes, was sentenced because she had laid upon another woman „in the way a man is used to do when he has carnal intercourse with his wife.“ The court seemed not to know how to react to this situation. Bets Wiebes was not arrested for her „conversation,“ but on the suspicion of having murdered one of her girlfriends. Later it turned out that another girlfriend with whom Bets lived was the murderer. That woman, Bartha Schuurman, confessed „the envy she had entertained against [the murdered] was situated in a strong jealousy, born from the dirty lusts that had taken place between Bet Wiebes and the murdered and between Bet Wiebes and herself.“ The court did not go to much trouble to find out exactly what had happened between the women. Bartha Schuurman was sentenced to death for murder and Bet Wiebes was exiled for six years because of her „dirty lusts.“

Sex between women was punished after 1795 — the same time after which soliciting between males became criminalized. Between 1795 to 1797, eleven women stood trial in Amsterdam because of „dirty acts“ with one another. Eight of them were confined in women’s prison. But their average confinement was much shorter than that of men: six versus twelve years during that period. […]

The word „sodomy“ was never used in the cases against these women. Most of the time, the Prosecutor spoke of „caresses and filthy acts.“ At least in one source the women were called „tribades.“

Public Reaction

The persecutions in 1730 were soon followed by massive publicity. In pamphlets and poems sodomites were made the scapegoats for all disasters that were supposed to wreck the country, the decline of trade and the Bourse, and the decline of morals. Clergymen tried to enlighten the public in books about sodomy, but their version veiled the facts rather than informed the readers. These books were about the destruction of Sodom and Gomorra and explained why the men of Sodom committed their wicked sins: pride, the result of abundance, took away their fear of punishment. Copious food made the people lazy, incapable of doing their duty, and seduced them to all kinds of sins. From Sodom, sodomy spread across the world. In the West, this vice was limited at the outset to Catholics and Italy, but now that the people of the Netherlands had lost their austerity of their ancestors and lived in luxury, they had fallen prey to this terrible crime. Everybody who had already succumbed to „the screaming sins“ — card-playing, gambling, swearing and whoring — was likely to commit sodomy or to be seduced into it and thus spread it further among the people.

[…]

In 1749, Christiaan Kip was caught in the act outside the city walls. He was severely abused by those who caught him, and a bystander was noted to have said: „Oh, it is that rascal; he has had that name for so long.“ […] Kip sustained a broken arm and leg on that occasion. On the other hand, this should not be explained as a kind of „queerbashing“ avant la lettre. „To fall into the hands of the mob“ (in de maling geraken) could happen to any suspected criminal caught in the act. The cry „hold the thief“ could raise a mob in no time, and if such a mob laid hands upon the supposed perpetrator, the unfortunate was beaten up and often thrown into a canal (as indeed happened to the sodomite Gerrit ter Horstn 1799). Numerous criminal case records noted suspects being assaulted by mobs or else being saved from mobs by constables. According to the Dutch legal historian Spierenburg, the mob justice was a relic of an older form of justice, the feud, which in the middle ages was an accepted form of settling scores between individuals without interference from the legal apparatus. Spierenburg argued that the practice reflected the fact that the authority of the ruling class had not yet been completely established. This also might explain why people were not very cooperative with attempts by the authorities to track down sodomites.

Forms of violence against sodomites that came close to „queerbashing“ did exist, however. Especially after 1795, people suspected of sodomy testified in court that they had been victim of this kind of violence.

[…]

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Aus: Theo van der Meer: The Persecutions of Sodomites in Eighteenth-Century Amsterdam: Changing Perceptions of Sodomy. In: Kent Gerard (Hrsg.) ; Gert Hekma (Hrsg.): The Pursuit of Sodomy: Male Homosexuality in Renaissance and Enlightenment Europe. New York 1989. S. 263-307.


3 Antworten auf „Die bürgerliche Shari‘a im Zeitalter der Aufklärung“


  1. 1 Der Apfel fällt nicht weit vom Stamm … | f*cking queers Pingback am 10. Mai 2007 um 21:58 Uhr
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