Hi! I was wondering if I could pick your brain a bit about Victorian queer history? Could a man theoretically be obviously gay (not neccesarily openly gay) as long as he was never caught engaging in sexual acts with a man? Was it just the physical act that was illegal, rather than the sexual orientation? So hypothetically, a gay man who was openly "bohemian" and "flamboyant" could potentially be safe from persecution if he remained a virgin? Hope that makes sense, thank you! xo
Hi @tjlcisthenewsexy!! Thanks for thinking of me for this question! Over the past few days I did a bit more research also taking into account some of the additional info you sent me, especially your questions about sodomy being a punishable crime via evidence of sex versus being convicted for “being gay.” You’re right - it’s a big question! And of course this answer isn’t totally comprehensive; these are just a few short examples of research on these topics. I’ll add some bits and bobs from recent books I’ve read…
In terms of anti-sodomy legislation (“sodomy” as a blanket term often covering various sex acts) in the Victorian era:
Britain still stood out for the savagery of its anti-sodomy legislation in this period. England and Wales hanged fifty-five men for the crime between 1805 and 1835 (figures are missing for 1818-19), one-seventh the number executed for murder. Sodomy remained punishable by hanging until 1861 (1889 in Scotland), but after 1835 the government routinely commuted death sentences. The Offences Against the Person Act of 1861 (repealed only in 1967) reduced the penalty to a prison term of ten years to life, which was still more severe than anywhere else in Europe. [Gay Life and Culture: A World History (2006), edited by Robert Aldrich]
The key was whether or not there was sufficient proof of sexual act(s) taking place:
Medical science began showing an interest in sodomy from the late 18th century, not in order to construct the ‘homosexual’ or ‘invert’ as a distinct type, as would happen one hundred years later, but rather to discern the physical traces that sodomy left on the body… This was because the courts looked to forensic medicine for proof of anal penetration… [Gay Life and Culture: A World History (2006), edited by Robert Aldrich]
Clearly some aspects of this were completely subjective or otherwise uncontrollable (e.g., it was thought that “men who practised fellatio had crooked mouths, short teeth, and thick lips.”) So even if there was no proof of a sexual act, a rather flamboyant or bohemian or camp man still might come under suspicion for not only his behaviour but additionally for physical characteristics he had no way of controlling (or alternatively, could enhance, if he so wished. Many men liked using cosmetics…but I digress).
Whilst sodomy was illegal, not everyone who engaged in it was subsequently convicted. In many cases, witnesses’ testimony and the own men’s confessions played a role in charging them with a crime:
Of course, the letter of law is one thing, enforcement quite another. Where sodomy remained a crime, there were probably relatively few prosecutions, although we frequently lack statistics. On the other hand, in countries with no penalties for sodomy the police could still use laws against public indecency to harass those men who cruised for sex in public places…Graham Robb argues, however, that on balance ‘nineteenth-century homosexuals lived under a cloud, but it seldom rained’. They suffered less from legal persecution than from 'the creeping sense of shame, the fear of losing friends, family and reputation…the social and mental isolation, and the strain of concealment.’ [Gay Life and Culture: A World History (2006), edited by Robert Aldrich]
For example, being caught on a particular bench in a particular park at a particular time of day could lead to being arrested, but the death penalty or prison sentence could be avoided if there wasn’t sufficient “evidence to substantiate penetration” or other aspects of sexual encounters. In many - if not most cases - where sexual acts occurred within a “consensual and clandestine relationship” there just simply wasn’t enough to support a charge of sodomy, even if the relationship and sex acts were brought to the attention of the authorities.
Even rumours of same-sex desires, relations, and relationships could cause men to be exiled from society or motivate them to flee the county, which many did. Being caught with another man “with his breeches ‘round ankles” most frequently led to extortion and blackmail, sometimes suicide.
In many societies, openness or indiscretion about sexual habits could perhaps cause more outrage than the sex act itself. The shock was not so much that he had been with a man, but that he had been caught - and not for the first time. This reaction could turn into panic if the scandal risked implicating the Establishment. [A Little Gay History: Desire and Diversity Across the World (2013) by R.B. Parkinson]
“Intense discretion” was absolutely necessary. Some men, like Edward Carpenter, lived publicly and openly with their male partners but most men were not able to/were not comfortable doing this. Men who perhaps privately realised their same-sex desire but did not ever act on it were likely in good company during these times; on the other hand, some men were also starting to push the boundaries of expressing their sexuality more openly. Clearly some were more comfortable being camp or flamboyant or bohemian than others, but this bravery still ran some serious risk.
Another quick thing before I go: the way people conceptualised sexual desire/identity in the nineteenth century seemed to be slightly different than how we think of it today. Starting around this time “there was a growing sense that sexual acts between men could be signs of a distinctive and sometimes exclusive identity” but just the same, many men who had sex with other men - and loved and had relationships with other men - didn’t necessarily think of themselves as “gay”:
But where do we draw the line between all these different types of love? And do we have to? These uncertainties show how impossible it is to impose absolute categorisations, and they also show the diverse forms that love and affection can take. Sexual acts and roles also vary, but these too have often been shaped by societies in rigidly distinct and mutually exclusive ways. […] Actions are, of course, not necessarily the same as identity. After all, who is more 'gay’, the man who has sex with another man because there is no woman available, or a man who wants to have sex with other men but doesn’t because he has a wife? Identities are never simple. [A Little Gay History: Desire and Diversity Across the World (2013) by R.B. Parkinson]
So we can see how concepts like “virginity” and “sexual identity” are hard to pin down in an historical sense. Is a man a virgin if he’s only ever had sex with men, never a woman, or vice versa? Is he a virgin if he’s engaged in some sex acts and not others? Is he a virgin if no one could ever “prove” that he’s had sex based on the presence or lack of physical characteristics on his body? People would have had quite different answers to these questions, depending on their beliefs, and we can only interpret so much from the existing historical record.
How many love letters and tokens found their fate in the fire, we’ll never know. Of course, much of what we do know about issues related to sexual behaviour in the nineteenth century are “frequently known only from the records created by the very institutions that were attempting to suppress them, and which of course do not present an unbiased picture” [Parkinson, 2013].
So yes: sexual acts between two men were illegal. Liking certain things, doing certain things, being flamboyant or bohemian or camp (and certainly privately loving another man) wasn’t illegal in quite in the same way, and yet, in what ways did those actions and love manifest? Did they spill over into a public sphere? Did they cause suspicion, speculation, rumour? Whether or not anything had been physically acted upon in a “provable” sense, even if it was so much as implied, men’s safety could still be at risk.
Whew. That’s a long answer! Feel free to take what you want, leave what you want - I hope it’s helped in some small measure. Thanks again for this ask! <3