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Lesbian Historic Motif Project: #22 – Benkov 2001 “The Erased Lesbian: Sodomy and the Legal Tradition in Medieval Europe”

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This is one of the articles that one finds referenced over and over again in subsequent publications on the general topic of lesbians in the Middle Ages. When considering how to interpret the rare examples of women being prosecuted for lesbian activity -- and how to interpret that rarity -- Benkov's analysis can provide a solid grounding for what a piece of data might and might not mean. By definition, the court records will not cover women enjoying quiet, under-the-radar lesbian relationships, or those who might have been (for whatever reason) accepted or overlooked by those around them. This doesn't mean that the only types of relationships were the ones found in the court records (or that those few were the only ones!) but in order to extrapolate in writing other types of relationships, we need to understand why this specific cases were identified as problematic.

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Benkov reviews how the squeamishness of medieval legal texts in indicating how the word "sodomy" is applied to women's acts effectively erases the lesbian nature of their activity: “women with each other by detestable and horrible means which should not be named or written about.” Which text is placed beside for more simple and clear descriptions of men participating in anal intercourse. Crompton (1980) addressed the question of prosecutions of women for sodomy up to the French revolution, but little additional material has been added since. Although historians have demonstrated that lesbianism was not immune from legal penalty it is still striking how relatively few cases were recorded compared to men.

Benkov proposes to understand this contrast via the legal focus of women's "sodomy" as being understood solely as an analog for male sexual transgressions, thereby excluding large amounts of possible sexual activity from inclusion. Detailed penitential manuals that include a variety of proscribed activities for men may indicate female transgressions with a vague “if a woman fornicates with a woman". The few more specific penitentials are valuable, such as Hincmar of Rheims. "They do not put flesh to flesh as in the fleshly genital member of one into the body of the other, since nature precludes this, but they do transform the use of that part of their body into an unnatural one: it is said that they use instruments of diabolical operations to excite desire.” This focus on penetration as the definition of sex, and thus of sexual crime/sin, follows pre-Christian classical thought. But where classical writers allowed for the fricatrix, Hincmar either can not conceive of non-penetrative activity or does not categorize it as sin.

This contrast provides a bridge to understanding why only certain types of activity may have made the transition from sin to crime and thus appeared in court records. Changes in the 13th century to procedures for accusation and evidence created greater scope for legal prosecution of private sexual activity on the basis of rumor or suspicion alone. In the same general period, the rise and consolidation of a legal category of sodomy from what had been a collection of less clearly related acts, both creates the beginning of a concept of male homosexual “identity” and effectively excludes women from this process. This was not a universal process and writings continue to identify vague female transgressions together that are defined primarily by the women's failure to interact sexually with men. (For example, Peter Abelard who condemns women who fail to have their genitals "for the use of men" but instead “co-habit with women".) This omission and vagueness in ecclesiastic law carried over to secular law, as did a common elision of more specific crimes under the rubric of sodomy, making it unclear whether women were covered by the category at all.

A late 13th century law text from the Orleans region is unusual in mentioning women specifically in the section on sodomy, but the illogical parallelism with the corresponding male text raises the question whether this was merely a structural parallel rather than a functional legal category. (What else to think when the penalties for women repeat the example of "losing the member" indicated for men?) Non-legal texts such as monastic rules acknowledge the existence of women's non-phallic homo-eroticism but the law fails to find a clear way to define it. Instead of focusing on female same-sex sexual activity, per se, the legal response follows the hetero-normative model by focusing on "women who behave sexually like men". This often resulted in a focus on identifying an "active" partner as culpable, with correspondingly more severe penalties. This created a perverse incentive for one member of a suspect couple to identify the other as the male-acting member in order to dodge punishment. The article concludes with an extended presentation of the three most detailed cases of prosecution for lesbian activity that have survived which illustrate these contrasts. (These cases were also mentioned in Puff (2000) and several other articles.)

Case 1: A 1405 French royal register contains the appeal documents from a woman sentenced (condemned?) for a lesbian relationship who asks for pardon apparently on the basis that she was the”passive” partner, an appeal in which she is successful. The women are both married. Laurence testifies that the relationship began when Jehanne approached her asking if she would be her “sweetheart” (mie) at which Laurence “thought there was nothing evil in it” and after some surprise, agrees. Jehanne is portrayed as the sexual aggressor who “climbed on her as a man does on a woman”. The encounter was enjoyable enough that they met repeatedly until one night when Jehanne came to Laurence’s house and Laurence said she no longer desired her. Jehanne took the news badly and attacked her with a knife then ran away. It isn’t clear whether the case first came to the attention of the law because of the assault or because of the transgressive sexual activity. It also isn’t clear whether the absence of a “diabolical instrument” contributed to the success of the appeal. Jehanne’s fate is not mentioned in the documents.

Case 2: Around 1514, it was recorded that Greta, a serving girl in Mösskirch, Germany, “loved young daughters, went after them ... and she also used all the bearings and manners, as if she had a masculine affect.” The investigation seems to have centered around the question of whether Greta was a hermaphrodite (and thus may have had a sexual organ capable of penetration) but on examination she was found to be “a true, proper woman”. The record doesn’t seem to indicate that there was excess concern over her behavior, only over the question of her somatic status. As in the first case, there is no mention of any external sexual aids and this contributes to the evidence that non-phallic activity may have been of lesser concern.

Case 3: This is the contrasting case of Katherina Hetzeldorferin in Speyer, Germany in 1477. The details can be found in the entry for Puff (2000). Here the “active” partner is not only sexually aggressive and male-acting, but she cross-dresses and passes for a man and makes use of an instrument to perform penetrative sex. In her case, the outcome of the trial was execution for Katherina and exile for her partners.

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