Sodomy between women

Facsimile of the article "Et besynderligt Givtermaal imellem tvende fruentimmere", or, "A peculiar marriage between two women" in the weekly journal Samleren: et ugesskrivt, from 1887.
Facsimile of the article "Et besynderligt Givtermaal imellem tvende fruentimmere", or, "A peculiar marriage between two women" in the weekly journal Samleren: et ugesskrivt, from 1887.

Sodomy, or fornication against nature, was until the late 19th century considered a wide category of forbidden (and sinful) sexual acts. In theory this category could include most sexual acts apart from reproductive sexuality between a man and a woman. In this respect it could also encompass sexual acts between men and women which deviated from this, and also sexuality between women.

In Europe it was nonetheless rare that relationships between women were included in the laws against sodomy, though it was included in the text of the sodomy ban in one of the most influential law texts of the time, the Penal Code for the Germanic-Roman Empire from 1533, Constitutio Criminalis Carolina.

Christian 5s Norske lov ("Christian Vs Norwegian Law") book six, chapter 13, paragraph 15 (N.L 6-13-15) from 1687 punished "fornication against nature" with "fire and flames". The definition of the crime was unclear, but the common interpretation was that it included certain forms of sexuality between men and between humans and animals (crimen bestialitatis, or bestiality).

Sodomy between persons of the same sex was investigated a few times during the time paragraph 15 was in effect (until 1842), but no one was convicted on these charges. The question of sexuality between women, on the other hand, was not raised until the 1840s. However, in 1847 and 1854 a couple of cases regarding this went all the way to The Supreme Court of Norway.

In Norway, the most specific requirement of sodomy or acts against nature was penetration: Between men, a complete transgression of the law was defined as anal penetration ("res in re") with emptying of semen ("effusio semini"). One should therefore assume that sexuality between women was not in fact defined as sodomy. However, it was not that simple.

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Facsimile of Kong Christian Den Femtis Norske Lov. Image: Special collections, University Library Bergen.
Facsimile of Kong Christian Den Femtis Norske Lov. Image: Special collections, University Library Bergen.

Defamatory ditties and peculiar marriages

There are few sources that mention sexuality between women before the end of the 1800s. Court sources mention one case from Kinsarvik in Hardanger in 1664 where a "Schammelig vise", or defamatory ditty, was written about two young women in the village who according to rumours would engage in illicit acts. The case about the ditty came up before the village council ("bygdetinget"), and the relationship between the two women was to be further investigated at the next council meeting. As the sources from the continued case have been lost, we do not know what happened to the two (Jordåen 2004).

Another case which was revealed in the 1780s concerned itself with what was called a "peculiar marriage between two women". Anne Kristine Mortensdotter and Jens Andersson had been married in Strømsø church by Drammen, but it was later revealed that the latter, anatomically speaking, was a woman. The case was described as a "despicable phenomenon against nature", a language usage which is connected to the text of the law, "fornication against nature". Despite this, it is not known whether the sodomy ban was considered enforced in this case. Jens Andersson successfully fled from captivity, and the case was never tried at court. (Stoa 2010).

1847: “lustful and pleasurable frictions” or sodomy?

In 1847 the very first sodomy case about sexual acts between two persons of the same sex, men or women, was brought up in the Norwegian Supreme Court. It is interesting, but not completely arbitrary that this was a case about sex between women: The reason was that it was unclear in the text of law whether or not the sodomy ban also included relations between women.

The accused were 68 year old Simonette Vold from Helgeland and two of her maids (Aarset 2000, p. 72ff. and 157-164). Vold admitted to have had sexual relations with the two others by laying on top of them and “dasket fladkind”, as Vold herself phrased it (dasket - slapped, smacked, or had inappropriate relations with; fladkind – flat cheeks) . One of the other women explained that Simonette on these occasions had behaved “entirely like a man during such a business”, and that the whole situation led to “a terrible creaking and crashing in the bed”. The court also found it proven that Vold had used an artificial male limb.

A doctor had examined the main suspect to see if she might have an unusually large clitoris, which according to the doctor had in some cases been used for mutual satisfaction of sexual urges between women, but this was disproven.

The three women had in lower instances of court been found guilty of trying to commit acts against nature, as written in paragraphs 18-21 in the new Penal Code of 1842. This paragraph set the punishment for sodomy to hard labour, which was a considerably milder punishment than the one in the previous law from 1687. As the acts between Simonette and the two other women had happened before this new law had gone into effect, however, the Supreme Court still considered that they should be tried according to the old law. The big question was then how to interpret “fornication against nature” as it was defined in this paragraph.

One of the judges, Claus Winter Hjelm, interpreted the Penal Code to include a wide specter of different unnatural acts and behaviours, and was less concerned with the demand for completed penetration. The central issue, to him, was that an “unnatural and terrible debauchery” had happened, and that the law would and should therefore be applied in every way they could see fit. Hence Hjelm dismissed the thought that sodomy should be limited to only certain sexual acts involving penetration.

Judge Ulrik Motzfeldt, on the other hand, argued that it could not have been the original intention that such acts were to be affected by the ban. The difference between unnatural relations between men and between women was significant enough that the latter could not without further ado be considered the same as the former, particularly as the premise for completing the transgression required penetration of “the one limb/body in the other”. Women could only touch and “rub” each other, not technically speaking have fornication (“omgjengelse”) with one another, according to Motzfeldt. As there was no mention of female sodomy in older Norwegian and Danish laws, he thought it less likely that these actions were intended to be included, and he stated that he thought it highly unlikely that King Christian V would have wanted such “lustful and pleasurable frictions punished with fire and flames” and that there in that case would be quite too many lustful young women who, based on this interpretation of the law, should have been burned (cited from Aarset 2000, p. 163).

Despite this, Motzfeld thought that the actions that had led to such scandal should have consequences. Even though the actions were not, strictly speaking, illegal, he thought that the women should be tried for indecent behaviour (“uteerligt Forhold”).

Anette Halvorsen Aarset, who has analysed the sentence, points out that the case is hard to interpret, but thinks the Supreme Court concluded according to Motzfeldts reasoning that the women could not be sentenced directly according to N.L. 6-13-15, but with analogy to the text of law (Aarset 2000: 76-77). Simonette Vold was sentenced to one year in a house of correction while the other two had to serve 15 days in prison, subsisting on water and bread.

The verdict shows that even though the law had strict conditions of completing the transgression, there was a general consensus that women could be in “inappropriate” relations to each other, which should be considered unlawful and punishable. Hjelm’s vote also shows a move from focusing on the specific acts to focusing on the urges: He seems to have considered what he called “indulgence of sexual urges” to be at the heart of the case, and that precisely what acts were involved was less important.

hogsterett1847domavisnb-page-001_1_eng.jpg

Facsimile from the paper Den Norske Rigstidende, 01.10.1847, that mentions the first known Norwegian supreme court case about sex between two person of the same sex. Image: Norwegian national library.
Facsimile from the paper Den Norske Rigstidende, 01.10.1847, that mentions the first known Norwegian supreme court case about sex between two person of the same sex. Image: Norwegian national library.

1854: Two women found not guilty for sodomy

In 1854 a new case was brought before the Supreme Court. It concerned two women from Kristiana (Oslo) who had “imitated relations between man and woman, to which end one of them had rolled up her underpants to a knot and thereafter used it as a male limb”.(Aarset 2000: 165).

In the Kristiania court one of the women was sentenced to 15 days in prison, subsisting on bread and water. Despite the court stating that paragraph 18-21 of the Penal Code of 1842 did not cover this kind of relations, the ruling referred to the Supreme Court verdict from 1842 where the three women were sentenced.

However, when this case was brought to the Supreme Court, the majority of judges this time voted for acquittal, as they considered the case to not fall under the jurisdiction of paragraphs 18-21 of the Penal Code, and that the text of law should be strictly abided by. Aarset, who has analysed this verdict as well, considers that the Supreme Court now seem to have stayed closer to the principle of not sentencing without strict referral to the text of law, as opposed to the verdict from 1847 (Aarset 200, s. 80-81).

The Supreme Court therefore declared that the verdict from 1847 should not create precedence for later cases. Firstly the old law from 1687 was no longer valid, as it been replaced by the Penal Code of 1842. Secondly the verdict from 1854 clearly stated that relations between women were not included in the ban. The verdict most likely then set a precedence excluding relations between women from being tried according to paragraphs 18-21.

Further trials or cases concerning sodomy between women in Norway in the 1800s are therefore unlikely, but so far unexplored.

From sodomy to sexuality between menn

The two verdicts from 1847 and 1854 show that the question of sexuality between women was discussed. They further show that these kinds of relationship could be imagined and defined as “inappropriate” or “sinful” in the mid-1800s. The idea of sexual relations between women was therefore not unheard of. Ulrik Motzfeld’s note that “too many lustful young women” would have been sentenced if one were to punish all “pleasurable frictions” between them, further supports this.

In 1889 paragraph 18-21 was changed so that “intercourse between men”, and similar relations with animals, was to be punished with labor. Sexual relations between women was therefore explicitly excluded. Attorney General Walter Scott Dahl stated that this was only natural, as it was a long time since such cases had been brought to court.

When §213 in the new Penal Code of 1902 was discussed in the Parliament, representative Magnus Kjølstad Graarud claimed it to be inconsistent that women were not included in the ban. It went against his "biological understanding”, as according to him this kind of behaviour was just as common amongst women as amongst men. Attorney General Anton Qvam refuted this strongly, and claimed that bodily or sexual relations between two women belonged to “the impossible things”. (Forhandlinger i Lagtinget Nr 26 (1901/1902): 204.)

Graarud thought it illogical that women were not included in the ban, because the definition of fornication (“utuktig omgjengelse”) in the Penal Code of 1902 was extended to include any kind of touching where genitals were involved between two people. Hence this kind of touching between women should also be included. However, Graarud’s opinion did not gain traction, and it was only sexuality between men that remained punishable in Norway under the §213 of the Penal Code of 1902, until it was removed in 1972.

The statement from Anton Qvam about sexuality between women being impossible should probably not be interpreted literally: During this time there was an increasing focus on the woman as a sexual being, and Norwegian psychiatrists had started describing “lesbian love” (Holm 1896: Looft 1896). Towards the end of the 19th century there was a gradual move towards looking at the sexual urges rather than the specific actions. To a certain degree this was also the case in the verdict from 1847, but it wasn’t until later this question was given significant attention both in courts of law and in society as a whole. Until the mid-1800s the medical examination in sodomy cases, for example, was a hunt for specific evidence of the actions that had taken place. Towards the end of the century a new kind of doctor appeared; the psychiatrists. These were brought in to explain the motives behind the actions, and the psychological background of the involved. Thus “homosexuality” and “lesbian love” came to be defined, in the late 1800s, as psychological dispositions one was born with, whereas sodomy had been defined only as a sinful or criminal act. Despite the fact that homosexuality between men was considered, for various reasons, the most important to prosecute, lesbian sexuality became a problematised theme as the 20th century progressed.

Further research

There may be more cases about sodomy between women in Norway, particularly in the 1800s. A more comprehensive study of sodomy cases is necessary to show the real extent. The two cases that were brought to the Supreme Court in 1847 and 1854 have been studied by Anette Halvorsen Aarset. A closer study of these cases, involving multiple sources, such as the verdicts and sentences from the lower courts, would probably provide rich materials for studying the understanding of sexuality between women in Norway in the 1800s.

Literature

Holm, Harald. 1896. Den specielle psychiatri for læger og studerende. Forelæsninger holdt ved Kristiania universitet 1895; med sygehistorier, facsimiler af haandskrifter samt tegninger. Kristiania: Cammermeyer.

Jordåen, Runar. 2004. “‘en Schammelig Vise’: Om ergi, sodomi og homoseksualitet”. Bergensposten 7, (2): 27-42.

Looft, Carl. 1896. Et tilfælde af homosexualitet hos en kvinde. Medicinsk revue, 13: 286-287.

Stoa, Nils Johan. 2010. Kjødets lyst. Fortellinger om synd og straff. Oslo: Cappelen Damm.

Aarset, Anette Halvorsen. 2000. Rettslig regulering av homoseksuell praksis. Oslo: Institutt for offentlig rett.

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