The Birth of Modern Criminology and Gendered Constructions of Homosexual Criminal Identity

Abstract

There is a dearth of engagement with LGBTQ populations, and sexual orientation and gender identity more broadly, in the field of criminology. This article analyzes the treatment of sexual orientation and gender identity at the birth of the discipline around the 1870s. Through an analysis of Cesare Lombroso’s writings, the article argues that a multifaceted stigma of deviance attached to homosexuality and gender nonconformity in early criminological theory. The article explains this multifaceted stigma in terms of broader political, social, cultural, and legal developments before and during the late nineteenth century that shaped modern Western conceptions of sexual orientation and gender identity.

KEYWORDS:

• criminology
• crime
• homosexuality
• history
• sodomy
• biology
• medicine

Notes

1. Some scholars have challenged the assumption that modern criminology originated in the late 19th century with the work of Cesare Lombroso. See Lindesmith and Levin (1937). Most of these critics date the origin of modern criminology to the mid-18th century, when Beccaria ([1767] 1995) released his influential treatise on penal reform (Beirne, 1993). Although legal thinkers of the late 18th and early 19th centuries, including Beccaria, made influential contributions to reform the penal system, these thinkers were not concerned with investigating the causes of crime from a scientific perspective. Since criminology is typically defined as the scientific study of crime and criminals, most scholars do not date the birth of modern criminology to the late 18th and early 19th century (Wetzell, 2000).

2. The Journal of School Violence (Volume 12, Issue 1, 2013) also recently released a special issue on the topic of anti-LGBTQ bullying in schools titled “Creating and Maintaining Safe and Responsive Schools for Lesbian, Gay, Bisexual, Transgender, and Queer Youths.”

3. Although this paragraph identifies an important trend involving LGBTQ-inclusive criminological research, it by no means argues that all criminology and criminal justice scholars have failed to conduct empirical investigations involving LGBTQ populations. Since 2000, criminological studies have investigated topics relevant to LGBTQ communities, including fear of crime among LGBTQ populations (Laing & Davies, 2011), criminal behavior of gay men (Kurtz, 2008), sexual victimization and homicides of LGBTQ people (Tyler, 2008; Bartlett, 2007), and attitudes toward LGBTQ individuals within law enforcement institutions and criminal justice education (Fradella et al., 2009; Colvin, 2009; Cannon & Dirks-Linhorst, 2006; Cannon, 2005; Burnstein & Kostelac, 2002). In addition to these studies, a handbook on LGBTQ communities and crime, which is the first of its kind, organizes and presents other criminological research on LGBTQ populations (Peterson & Panfil, 2014).

4. Scholars have advanced different definitions of social control (Martin, 2003). Buckner (1971) explained formal social control as including institutionalized forms of social control, such as “the ‘official’ laws, regulations, and understandings that are supposed to encompass all members of a group or society” (p. 14). Advancing a broader conception of social control, Conrad and Schneider (1992) described that “sociologists usually think of formal social control in terms of institutions and agents of social control. They may be depicted as social control apparatuses that operate, explicitly and implicitly, to ensure adherence to a particular set of values and norms, and in this work, to sanction deviance” (p. 8). In more concrete terms, the investigators described that “we usually think of the criminal justice system, with its police, courts, correctional facilities, and auxiliary personnel, as the major institutions of social control. Other institutions such as education, welfare, the mass media, and medicine are also frequently depicted as having social control functions” (Conrad & Schneider, 1992, p. 8). The article adopts this broader conception of social control.

5. It is important to discuss a caveat concerning the available English translations of Lombroso’s scholarship. In 1876, Lombroso released the first edition of Criminal Man, which he revised in four subsequent editions. Despite being considered a foundational text, no complete English translation of any edition of Criminal Man has been published (Gibson & Rafter, 2006). One incomplete and one distorted English translations of the text, both released in 1911, shaped 20th-century interpretations of Lombroso’s positions (Gibson & Rafter, 2006). Lombroso’s daughter produced the first translation shortly after Lombroso’s death, the content of which scholars now interpret as being mostly written by Lombroso’s daughter and not Lombroso himself. Horton released the second translation, which was based only on the third and fifth editions of the text. In 2006, historians Gibson and Rafter (2006) released the first abridged English translation of all five editions. This article uses excerpts from Gibson and Rafter’s translation because this translation is the most accurate and comprehensive translation to date. In 2004, Gibson and Rafter also released a comprehensive translation of Lombroso’s work concerning female criminality, titled Criminal Woman, the Prostitute, and the Natural Woman (Lombroso & Ferrero, 2004 [1893]). The article uses excerpts from that translation in providing a critical analysis of Lombroso’s treatment of female sexual criminality.

6. A version of Lombroso’s theory became popular in those regions in the early 20th century when future criminologists—such as Hooton, Goodard, Sheldon, and Sheldon and Glueck—conducted research on the biological constitutions of criminals inspired by Lombroso’s ideas (Gibson & Rafter, 2004; Lilly, Cullen, & Ball, 2011). Scholars have ascribed the growing popularity of Lombroso’s theory of crime to discussions of his work in Ellis’s (1890) The Criminal.

7. Degeneracy theory drew on Darwin’s (1859, 1871) theory of evolution to explain social vices as manifestations of defective and heritable biological characteristics (Greenberg, 1988; Miller, 2006).

8. Darwinian principles and degeneracy theory were not yet developed when Bentham made this argument. This is not to imply that Bentham would have relied on degeneracy theory to denigrate ancient societies where homosexual practices were widespread if it had been available.

9. Lombroso (1906) stated: The social and legal measures against the latter [born homosexuals] may not be as severe as against the first [born criminals], because their crimes are much more limited, and you can be assured that they will cease with the loss of sexual activity—that cannot be said of man thug, dangerous to the last day of his life, and against which preventative measures are not enough. (p. 381)

10. The strong influence of the story of Sodom is substantiated by the fact that the term sodomy derives from the ecclesiastical Latin terms pecatum Sodomiticum, meaning “sin of Sodom” (Bayer, 1981).

11. Henry VIII re-enacted the 1533 Act in 1536, 1539, and 1541 (Bhaskaran, 2004). After inheriting the throne in 1547, Edward VI repealed the Act along with other legislation passed during Henry VIII’s reign. Queen Elizabeth later reinstated the Act in 1562.

12. The 1533 Act did not distinguish acts of buggery between people based on gender, or between people and animals (Weeks, 1981). As felonies, the penalty for these “abominable” acts was death. Scholars assert that there were relatively few prosecutions under the 1533 Act prior to 1880 (Benemann, 2006; Eskridge, 2008). Despite this lack of enforcement, society viewed acts of buggery as deplorable (Eskridge, 2008).

13. The Italian Renaissance diffused widely and influenced art and intellectual thought in other European nations (Kristeller, 1990).

14. Prominent Enlightenment thinkers, including Montesquieu, Voltaire, Rousseau, Diderot, and Hume applied scientific principles to explain the order and rationality of social institutions (Eckman, 2008). These thinkers criticized religion as “a fraud or at least an illusion” (Bohm, 2001, p. 12) and as “irrational and inappropriate in a scientific age” (Eckman, 2008, p. 73).

15. Bentham stated: In Athens and in ancient Rome in the most flourishing periods of the history of those capitals, regular intercourse between the sexes was scarcely much more common. It was upon the same footing throughout Greece: everybody practised it; nobody was ashamed of it. (Bentham & Crompton, 1978b: 392)

16. Bentham stated: As to any primary mischief, it is evident that it produces no pain in anyone. On the contrary it produces pleasure, and that a pleasure which, by their perverted taste, is by this supposition preferred to that pleasure which is in general reputed the greatest. The partners are both willing. If either of them be unwilling, the act is not that which we have here in view: it is an offence totally different in its nature of effects: it is a personal injury; it is a kind of rape. (Bentham & Crompton, 1978b, p. 390) As to any secondary mischief, it produces not any pain of apprehension. For what is there in it for any body to be afraid of? By the supposition, those only are the objects of it who choose to be so. (p. 390)

17. Bentham further argued that excessively harsh punishments for sodomy increased risks of extortion (Bentham & Crompton, 1978a). Bentham also offered traditional arguments based on principles of proportionality to criticize these harsh punishments.

18. Evidence of the government’s limited role in regulating sexual morality is further substantiated by the ways in which other statutes involving sexual conduct were interpreted and applied. In many U.S. states, courts required an act of adultery to be “open and habitual” in nature to qualify as a crime (Hamowy, 1977, pp. 230–231). Many U.S. courts interpreted criminal laws against fornication similarly (Hamowy, 1977). The state’s role in regulating sexuality focused on protecting the sanctity of the public realm from “the public flaunting of sexual activities,” not on regulating socially disapproved sexual behaviors within the privacy of the home (Hamowy, 1977, p. 231).

19. German and French doctors Casper (1852) and Tardieu (1857) put forth the first suggestions that homosexuality was congenital. Less than a decade later, German jurist Ulrichs articulated the first comprehensive medical conception of homosexuality (Hernn, 1995; Kennedy, 1997). In a series of booklets written between 1862 and 1879, Ulrichs (1898, 1899) coined the term urning to describe homosexuals, arguing that homosexuality was a natural, innate, and immutable individual characteristic. He described male homosexuals as anima muliebris virili corpore inculsa (a female psyche confined in a male body) and conceptualized homosexuals as a distinct “third sex.” Ulrichs’ categorization of homosexuals as a distinct class of persons differed from past conceptions of homosexuality as a series of acquired sinful acts (Kennedy, 1997; Miller, 2006). Based on his view that homosexuality was a natural variant of human nature, Ulrich advocated societal, medical, and legal acceptance of homosexuality (Kennedy, 1997; Fernbach, 1998). Ulrichs’ call for the decriminalization of homosexuality demonstrates that concepts of biological “naturalness” began to infiltrate broader discussions of crime and punishment. Ulrichs’ ideas inspired a wave of clinical research on homosexuality (Hernn, 1995).

20. On this point, Krafft-Ebing ([1886] 1965) stated: It cannot be doubted that, under these circumstances, states of stress and compulsion may be created by an unfortunate natural disposition and constitution. Society and the law should understand and appreciate these facts. The former should pity, and not despise, these unfortunates; the latter must cease to punish them. (p. 383)

21. For instance, medical practitioners regularly provided expert testimony in legal cases, which enabled those practitioners to instill their definitions of sexual normalcy into the legal sphere. For example, Casper and Tardieu, two prominent European medico-legal experts of the 19th century, assisted in identifying “sexual inverts” and determining culpability for sex crimes in specific cases (Weeks, 1981; Lehring, 2003). In addition, Krafft-Ebing acted as a medical examiner for the courts (Tamagne, 2006), and he intended for Psychopathia Sexualis to serve a reference guide for doctors and judges to determine whether particular defendants were “sexual inverts.”

22. It is important to note that historians did not begin to trace the development of modern lesbian identity until the end of the 20th century (Vicinus, 1992). This delay raises complications since contemporary assumptions about lesbian identity arguably differ from those made in the past (Kenney, 1998).