Through the keyhole

A history of sex, space and public modesty in modern France

Marcela Iacub

• Publisher: Manchester University Press
• Year: 2016
• Print ISBN: 9781784991524
• eBook ISBN: 9781784998110
• Edition: 1
• Topic: History
• Subtopic: British History
• Index: History

In 1857, a group of young people who had participated in an orgy in a private mansion was sentenced for contempt of public decency ( outrage public à la pudeur ) because a voyeur was able to watch them through a keyhole. For Marcela Iacub, the crux of such cases hinges on where the public ends and the private begins, and what one can reveal, and what one ought to hide. Today, the term pudeur has disappeared from the French penal code to be replaced by Sex. But, far from being an epic story of hard-won freedom, Iacub demonstrates that the transformation techniques used by the State in the last two centuries have rendered sexuality into a spectacle and have conditioned our spaces, our clothes, our comportment and even some of our mental illnesses. In so doing, Iacub offers us a politico-legal history of the gaze.

Part I

Constructing and demolishing the wall of modesty

Wall: Anything that serves as a partition, barrier, or separation; an obstacle constituted by persons or things in order to oppose and resist

Grand Dictionnaire Encyclopédique Larousse

Great walls, such as the one built by the Chinese, have had the objective of protecting those who constructed them from the assaults of enemy troops. Other walls were built to protect from foreign diseases and were conceived of as quarantine lines (cordons sanitaires). We have sometimes raised walls so that residents do not escape, transforming the territories they encircled into prisons. The fall of these walls was the symbol of liberty finally reclaimed. The virtual wall that the Napoleonic Code erected in 1810 created two separate worlds within a single society. But, far from having caged society, this wall had the strange and distinctive feature of having sought to protect it against the will of its own architects to control and punish. The justification that the jurists of the nineteenth century gave to Article 330 of the Penal Code of 1810, which had created the wall of modesty, was in essence the following: on the one hand, there was the world of public space, which was required to be stripped of any manifestation of sexuality; on the other, the private world in which everyone could enjoy the greatest of liberties because the State had promised not to interfere with it. Thus, the wall of modesty guaranteed citizens a peaceful indulgence in their sexuality, as long as their activities remained hidden from the public gaze.

This manner of establishing private space was a negative technique by which the protection of personal liberties was assured. These liberties existed not because the State recognized them in an explicit or specific manner but rather because it delineated an enclosed space within which the State could not penetrate. The jurists were proud of it, for they perceived in it the sign that their law—unlike that of the Ancien Régime—had freed itself from religion, was able to distinguish sin from crime, and limited itself to punishing acts that disturbed social order. Gone was burning at the stake for acts of sodomy, incest or bestiality; commissions convoked to measure the erections of impotent husbands were a thing of the past and nonviolent sexuality that took place in the secrecy of private space was no longer a matter for the State.

Conversely, on the public side of the wall of modesty there had always been a very negative view of sexual desires, which were deemed to be uncontrollable and dangerous forces that the State sought to contain using a system of walls and barriers. Among these, the State did not differentiate sexualities as natural or against nature, legitimate or illegitimate. All sexuality had to be hidden, for even sexual acts that were framed within marriage could, if they ever took place in the public space, awaken base instincts and lust that could make the population susceptible to debauchery.

In this way, the wall could be seen as a sort of compromise between the protection of recently acquired private liberties and a past that the new order sought unsuccessfully to bury altogether. The wall not only transcended the old law, which had given sexuality a central and almost magical place, but also what remained of it in a post-revolutionary present that had rendered sexuality almost irrelevant. The wall was there to remind us that, as a result of Napoleonic codifications, this secularized sex was not a trivial matter. At the very least, it required for sex to be hidden, in order not to break with this long history that no revolution or guillotine could eradicate from the collective conscience.

But this fragile equilibrium could not hold up against its own contradictions. Very quickly, the private side of the wall came to be perceived as a hideout that virtue had granted vice and corruption. This is how, toward the middle of the nineteenth century, as the judges launched their great moral crusade, they gave themselves every means possible to bring within their reach the sexual behavior that the permissive Code had allowed to thrive with perfect impunity. They eventually won this battle in 1877, when all visible space became potentially public. For this reason, the history of the wall of modesty is one of long regret.

1

The construction of the wall of modesty

As Article 330 of the Penal Code of 1810 states very tersely, “[a]nyone who is in contempt of public decency will be punished with imprisonment of three months to a year, and a fine of 16 to 200 francs.” Until the reform of 1992, which transformed Article 330 into the current offense of sexual exhibition, only a few legislative provisions increased the severity of punishment prescribed for this infraction, and did so without actually changing its definition.

The first was the law of 20 April 1825, known as the law “of sacrilege,” (repealed on 11 October 1830¹), which established that the punishment provided for by Article 330 could be extended from three to five years of imprisonment when the act had been committed in a church. On 13 May 1863, a law raised the maximum punishment provided for by the Code of 1810 from one year to two. This change allowed for individuals previously sentenced for public indecency to receive punishments for recidivism.² In 1885, public indecency became an offense eligible for, in case of repeated infringement, the punishment of relegation.³ But this provision was repealed in 1982. Thus, between 1810 and 1992, it was the courts that (re)shaped this infraction, redefining its meaning and indirectly attributing to it new functions within the penal framework.

But, before we analyze the fundamental place of jurisprudence in the history of Article 330, it is important to understand the nature and significance of the legislative gesture that created this provision in the 1810 Penal Code; this law, which divides visible space in two by forbidding the public expression of sexuality, did not exist in the legal framework of the Ancien Régime.

Apart from the novelty that it introduced with regard to the past, and even before the courts charged themselves with the task of transforming it, the law contained in Article 330 had the unique characteristic of appearing exogenous to the juridical order that had invented it. The logic of the law against public indecency, in contrast with other offenses against morality, made it seem as if it was an institutional innovation that emanated from another world of norms.

Unlike laws that targeted other moral offenses, this curious legislative invention conceived of sexuality as a behavior whose main trait did not have to do with consent, legitimacy or normalcy. Public indecency rendered sexuality into a spatial event the legitimacy of which depended on its visibility or invisibility to the public. Sexual behavior was thus conceived as a spectacle, and was deemed legal or illegal, depending on what the perpetrators, these “actors despite themselves,” chose as their stage. In the logic of Article 330 it was important to discern whether this act took place on the right or the wrong side of the wall of modesty.

I Sexuality in the Criminal Code of 1810

The Penal Code of 1810 had confirmed the major changes in definitions of sexual crime that the French Revolution had initiated. As the spokespersons for the Penal Code of 1791 had declared to the Constituent Assembly, “You will see that this bevy of imaginary crimes that stuffed the old law books will soon disappear.”⁴ This revolutionary heritage, which the Code of 1810 did not repudiate, meant that all crimes related to heresy, such as so-called acts against nature, incest and debauchery, would no longer be under the jurisdiction of the criminal court.

The State did not seek, as in the past, to punish what was considered a vice in the eyes of the moral law or a sin in the eyes of the religious law. It refrained from intervening in those spheres unless such acts were considered to harm to social order.

This clear separation between criminal law and religion made France at once an example and an exception among Western nations. Thus, in the same period, and for a long time to come, in Germany or England sodomy, bestiality and incest continued to be punished. In England, sentences by hanging were pronounced against sodomites until 1861. Towards the end of the nineteenth century, a Swiss-German law still punished couples living under common-law marriage.

The Penal Code of 1810 had gotten rid of God, but it gave itself a new master that was certainly less terrifying but still quite despotic. Indeed, the Napoleonic codifications had rendered the institution of marriage the center of the political organization of the private sphere. By the type of constraints that it instilled, this entirely secularized institution appeared to be the most able to ensure simultaneously the policing of urges, the distribution of gender roles and the reproduction of citizens.

Given that criminal law depended on marriage, its provisions were less intended to ensure freedom to consent or not to consent to sexual relations than to reinforce the hegemony of the institution in the matter of morality. Thus, it is this sexuality, dominated by marriage and cut off from any transcendence, that criminal law was responsible for organizing.

Sex, marriage and criminal law

Unlike the law of the Ancien Régime, marriage from the Civil Code of 1804 subjected sexuality to its control: the validity of marriage did not depend on the possibility for spouses to maintain normal sexual relations. In contrast to the past, impotence was no longer a cause that justified annulment.⁵ Moreover, for the marriage to be valid, it was not even necessary that the spouses have “normal” sexual organs. According to a famous case of 1903,⁶ it was sufficient that a couple had the appearance of a man and a woman.

The right to legitimate filiation was also marked by the slight contempt for things sexual. Presumption of paternity and the difficulties in ruling it out meant that children who were born to a married woman were required to have been born of the marriage, even if the legal husband was not the father. It was the same for children to whom women had not given birth.⁷ It was very easy for a married woman to pass off a child born to another woman as her legitimate son or daughter. The couple enjoyed a fairly broad power when it came to managing appearances and the consequences of their sexual relations.

Marriage as institution rendered sexuality as a type of exclusive service that spouses owed to each other. Engaging in sexual relations was a duty that could be exacted by force. Not only could you call the police to compel a recalcitrant spouse to return to the marital home but it was also possible to use physical violence to obtain favors from her.

The courts had decided that there could not be rape between spouses, as long as the husband had engaged in forced vaginal penetration of his wife. Other forced sexual acts could be classified as indecent assault. One could only complain of sexual crime (other than rape) when there was no penetration of the “appropriate vessel” or when there was vaginal penetration under exceptional circumstances. Thus, in 1919, the Supreme Court handed down a verdict of indecent assault in a famous case, in which the husband had violently engaged in sex with his wife in the presence of their children while his brother had helped force apart his sister-in-law’s legs.⁸

But unlike under the old law, the couple had the right to decide by mutual agreement to engage in “unnatural” sexual intercourse. However, since it was not a duty they owed one another, each spouse had to explicitly consent to each of these “unnatural” acts—as if they were not married.

Both criminal and civil law fought against extramarital sexuality. Adultery was a crime that was described and punished differently depending on whether the husband or the wife was unfaithful. Adulterous filiation could not be established even after the dissolution of marriage.

Thus, marriage had rendered sexuality into an exclusive service, an obligation which, whether one fulfilled or not, had no influence either on the validity of the marriage, or—barring exceptional cases—on filiation, and even less on the happiness of those concerned. Matrimonial sex was really the only kind that was constructed in law. Napoleonic codification had created “sexual rights” as attached to marriage, returning to a tradition that dates back to the Middle Ages.⁹

Vaginal intercourse between spouses was the legal ideal of the new moral law. In essence, this meant that, in order to promote this ideal, all other forms of sexuality had to be discouraged, by means of negative incentives.

Consent and sexual acts outside marriage

Sexual relations outside marriage were tolerated by the criminal law to the extent that they were consensual. Civil law considered them with great disfavor and, as such, they did not give rise to any right.

Attempts to establish paternity were banned and it was only toward the mid-nineteenth century that the move to contact “seduced” women—even just to compensate them for the dishonor caused by an extramarital pregnancy—began to be accepted in a very small way.¹⁰ It was not until 1912 that the attempts to establish paternity were allowed in specific cases.

Procreation...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Acknowledgments
• Abbreviations
• Translator’s foreword
• Introduction: What is a history of public modesty?
• Part I: Constructing and demolishing the wall of modesty
• Part II: The visual liberation of public spaces
• Part III: The politics of spaces in the era of Sex
• Works cited
• Index