, Susanne Hehenberger
Beiträge zur Rechtsgeschichte Österreichs 9. Jahrgang Heft 1/2019, pp. 131-149, 2019/05/21
Sexualität vor Gericht
Deviante geschlechtliche Praktiken und deren Verfolgung vom 14. bis zum 19. Jahrhundert
The article examines if and with which terms sexual practices that were contemporary interpretable as "sodomite", i.e. “sex against nature”, were discussed in marriage proceedings before ecclesiastical courts. The source basis consists of 1,749 main proceedings, which were researched, transcribed and recorded in a database within the framework of two research projects, financed by the Austrian Science Fund between 2011 and 2018. After a brief overview of the legal norms, we focus on those 20 marriage proceedings in which wives and husbands spoke before the consistories about the "unnatural" sexual practices which had been demanded of them. Specifically, we analyze three marriage proceedings in which the charges went beyond the heterosexual framework and three marriage proceedings in which wives explicitly accused their husbands of forcibly carrying out "marital duties". It is noteworthy that, with one exception, the allegations were made only by wives. It is also noteworthy that, again with the exception of one married couple, all these married couples lived in 18th century Vienna and that at one fifth, nobles are overrepresented. In relation to all 444 marriage proceedings in which spouses accused each other of sexual misconduct, it becomes apparent that the allegations of sodomy and marital rape were more likely to lead to a temporary separation, however there was not one single case in which the consistorial councils decided that this accusations were sufficient to divorce the couple from bed and board. Although "sodomite" practices, especially those that transcended the heterosexual framework, were punishable by death, we found no evidence of exchange of information between the ecclesiastical courts and secular criminal justice.
Keywords: divorce – early modern Austria – gender history – law – rape – sodomy
