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Lesbian Historic Motif Podcast - Episode 305 – Lesbians and the Law - transcript

(Originally aired 2025/01/19 - listen here)

Introduction

Back seven years ago, when I first changed the show from monthly to weekly, I had a segment called “ask Sappho” to address listener questions about specific topics. The first one of those answered the questions “when and where was it illegal to be a lesbian?” Now that I’m working seriously on essays that will contribute to the future sourcebook, I wanted to expand my thoughts on that topic.

As I noted in that original essay, this is a complicated question, because it not only varies according to time and place, but it depends on what aspect of lesbianism you’re considering. If I may channel Foucault for a moment, it’s unlikely that you’ll have a law saying that it’s illegal to be a homosexual if you don’t have a concept of “being a homosexual” as a meaningful category. If a society is thinking in terms of acts, not identities, then they may have laws addressing specific acts, but they may not have laws stigmatizing specific identities. Within this context, we always need to keep in mind that male and female homosexuality were often viewed and treated very differently. So we can never assume that legal concerns addressing sex between men—which are typically far better documented—will automatically apply to women.

Being treated differently doesn’t necessarily equate to lives being better or worse. While men who had sex with men were far more likely to be the subject of legal prosecution, women who had sex with women were far more likely to be subject to informal familial punishment or coercion. So in looking specifically at legal status today, I don’t mean to erase the other types of consequences queer women faced in history.

If we want to know, “was lesbianism illegal in this specific time and place?” we need to ask, “what specific actions and behaviors that we currently associate with lesbianism were illegal in that time and place?” The answer can mean that there were significant parts of the population that we (today) would classify as lesbians who were not at risk of any legal penalties at all, while other subsets might be significantly at risk. This isn’t meant to minimize the sometimes horrific penalties that some women received for same-sex activity, but to emphasize that one size does not fit all.

The actions that incurred legal risk were not necessarily directly associated with sex acts—although specific types of sex acts were the most common feature that raised concerns. Gender transgression was frequently an aspect of prosecutions—though not all types of gender transgression brought down the force of law, or at least not consistently. And the law codes that were invoked to punish people for offenses associated with lesbianism often declined to spell out specifics of what the transgression was, or to clearly identify lesbianism as the relevant factor.

So, to some extent, the best way to study the question of lesbians and the law is to look at individual cases where someone came under legal scrutiny, and where the elements of the case fall within the fuzzy boundaries of what modern people would consider to be associated with lesbian identity. Those specific elements fall generally in the following categories: certain specific types of sex acts engaged in between people assigned as female; certain types of gender presentation that fell outside the acceptable bounds for persons assigned female; and certain social performances that were contrary to the normative expectations between two persons assigned female. I emphasize the “persons assigned female” aspect because a great many of the individual legal cases involve violation of gender roles rather than any concept of sexuality. And that means that concepts of gender identity complicate the question of whether lesbianism, per se, was the offense.

So my approach here will be to look at each individual case (or group of cases) and tease out what combination of factors were crucial to the concerns of the court, both in terms of whether any crime was alleged at all, and in terms of how severely it was addressed. Today’s survey will be limited to western Christian culture, even though I have a few sources on legal aspects in Islamicate society, in order to present more useful comparisons.

How Records Skew Perceptions

It’s crucial to keep in mind that legal records are heavily biased in the worldview they present. They focus on things that were considered illegal. They focus on events where the authorities chose to pursue action. And they involve the testimony of people who may have been questioned under torture, or may have had a strong incentive to tell a story that aligned with what the authorities expected to hear.

The law is not the only force shaping people’s experiences—social penalties can be just as daunting as legal ones, without leaving the same traces in the historic record. But conversely, the incidents we read about in court records are often the product of a conjunction of factors that don’t always relate directly to a sexual offense. Many of the detailed court records that involve sex between women also involve assault or sexual coercion. Does this mean that historic lesbian relationships normally include abuse? Or does it mean that happy, consenting, non-violent relationships were rarely of interest to the law? Many of the cases involved gender-crossing and were prosecuted in part for violating marriage laws. Does that mean that historic lesbian relationships were primarily modeled on male-female married couples? Or does it mean that femme-femme couples were less likely to be prosecuted?

In reviewing the specific cases under discussion, pay attention to aggravating factors that may explain why this particular person was accused.

Religious versus Secular Law and the Definition of Sex

For much of European history, secular and religious law are deeply entangled. Not everything condemned as a sin was illegal. There were topics that secular law codes didn’t address, leaving the matter entirely to religious law. But as secular law codes developed, they often built on the foundations of religion. And when sexual offenses got tangled up with ideas of heresy, it was primarily religious law that was applied, with some of the most horrific consequences.

It can be useful to begin by considering religious codes that focused on “sin” rather than “crime”. Sex acts that didn’t fall under secular law codes might still be punished with religious penance if a women confessed to them. Within this context, consider that when the definition of “sodomy” was at its broadest, it covered pretty much any sexual activity that wasn’t penis-in-vagina sex, in the context of marriage, for the purpose of procreation. Later the definition narrowed significantly, but without always clearly laying out the limits of that narrower definition.

Definitions are important. There is a continuing debate regarding what constitutes “sex” for the purposes of identifying sexual offenses. One strand of thought considers that a penis is necessary for something to be sex. Following this reasoning, two women can only commit a sexual offense to the extent that they employ something analogous to a penis, whether a physical implement or the supposed enlarged clitoris capable of penetration. Thus we see in many court cases, a hyper-fixation on whether penetration was involved, and with what.

Other definitions considered that any activity between two women that resulted in orgasm could be considered sex, most often applied to tribadism where the actions could be seen as mimicking a male-female sex act. In contrast, actions such as manual stimulation of the genitals or fondling of the breasts were far less likely to be categorized as sex for criminal purposes.

Early Christian-based law codes drew on the condemnation of Saint Paul (Romans I, 26) of women “who changed the natural use into that which is against nature” interpreting it as indicating lesbian activity. But there is a long history of law codes trying to apply the same framework to male and female homosexuality, while the specifics of the offenses and penalties clearly assumed a male offender. Imperial edicts of the 4th through 6th century that impose a death penalty on men have wording that doesn’t make sense applied to women. Not until the medieval era do we find legal language that clearly includes women and the types of offenses women might commit.

Penitential manuals intended to guide priests in assigning penances for sin were somewhat more detailed and forthcoming about specific sex acts and can be considered a type of law code. I’ve separated this section from the discussions of specific regional legal climates because religious manuals tended to be international, or at least difficult to pin down to a specific region.

The 7th century Penitential of Theodore lists “a woman [who] practices vice with a woman” alongside other sexual sins, with a greater penance for a married woman than an unmarried girl or a widow (presumably because she has an acceptable sexual outlet). The 9th century Penitential of Rabanus Maurus refers to “a woman who joins herself to another woman after the manner of fornication” and the 8th century Penitential of Bede prescribes a stronger penance for “nuns with a nun, using an instrument”. Hincmar of Reims in the 9th century also focuses on “certain instruments…to excite desire” and Hildegard of Bingen in the 12th century is concerned with gender roles, chastising “a woman who…plays a male role in coupling with another woman.”

The penalties recommended in penitential manuals typically involve fasting or food restrictions, or performing certain prayers, with a specific period of time recommended. This sets them distinctly apart from punishments under secular law, which could involve corporal or even capital punishment.

While penitential manuals had general application, monastic rules aimed specifically at nuns addressed romantic behavior outside the realm of sex, because they were concerned about personal relationships interfering with religious devotion. So you have prohibitions like Donatus in the 7th century, "It is forbidden lest any take the hand of another for delight or stand or walk around or sit together ... any who is called 'little girl' or who call one another 'little girl'…" and frequent prohibitions on nuns sleeping in the same bed or being together in private. But these were not “laws” in the usual sense of the word.

Individual Cultures

Now I’m going to take a tour though legal evidence from specific regions and then I’ll do a bit of summing up at the end. As usual, this tour will be patchy and incomplete, because it relies on what times and places I’ve found articles about.

Italy

We’ll start with Italy so we can start by touching on a classical reference. Seneca the Elder, writing around the 1st century in his Controversies—something of a textbook for how to argue legal cases—includes one example where he brings in a hypothetical argument about whether a man is justified in killing his wife and his wife’s female lover when he discovers them in the act. While elite male Roman society was hostile to female same-sex activity, this case doesn’t actually tell us anything about the legal status of sex between women. The question was whether a man had legal justification for killing his wife’s partner in adultery. (In fact, one part of the argument was that at first he couldn’t tell the gender of his victim.) Given the detail in which the case is discussed, if engaging in lesbian sex had been considered a crime on its own, one presumes that point would have been raised.

In the late medieval period, local law codes in Italy specifically included “female sodomy” as an offence that warranted the death penalty, with specific examples in Bartholomaeus de Saliceto’s 15th century legal commentaries and a 1574 statute in the town of Treviso which specified burning as the penalty. But the one actual legal case that shows up is more complicated and less dire. In 1295, a woman named Bertolina was accused in a civil suit by a hostile neighbor of practicing magic and of having sex with women using an artificial penis, for which she was assessed a monetary fine but no physical punishment. With the exception of the neighbor who brought the suit, her community seems to have been indifferent to her sexual proclivities, which were a subject of open gossip.

Spain

Thanks to the work of several authors, we have a vast amount of detail on legal prosecutions of lesbian sex in Spain, where intolerance for sexual crimes—especially under the Inquisition—ran high. Spanish law saw an increase in intolerance for unorthodox sex in the 16-17th centuries. The increasing association of sodomy with heresy motivated transferring jurisdiction for sodomy cases to the Inquisition beginning in the early 16th century. But there was an active debate regarding whether what women could do together could be classified as “sodomy”. A 1532 edict by the Holy Roman Emperor Charles V explicitly included women under sodomy laws. This interpretation was also confirmed by a 1555 opinion discussing the medieval law code. But competing legal opinions held that sex between women was inherently less of a transgression than male sodomy and recommended leniency on this basis. Technical decisions often focused on whether an “instrument” had been used. The conflicting professional opinions on female sodomy in Spain played out in criminal prosecutions. The outcome of trials could depend both on the specific nature of the behavior and situation as well as on how successful the accused woman was in contesting the charges.

Around 1400 a woman dressed as a man served as a judicial official and married two women (presumably sequentially). She was convicted of sodomy because she used a penetrative instrument for sex, but recognition of her government service resulted in leniency. Specifically, she was hanged rather than the prescribed sentence of being burnt to death. The accusation had come from her second wife.

In a 16th century case (for which I know no other details) involving two nuns who engaged in sex using “instruments” the sentence was death by burning.

In 1502 in Valencia a woman passed as a man and married a woman, using an artificial penis for sex. Her gender was discovered in the context of an accusation of theft. She was sentenced to hang but was pardoned on the basis of a legal technicality with regard to how the trial was handled. There is no mention of her wife being accused.

In 1503, two women were accused of having sex “like a man and a woman” although no penetrative instrument is mentioned. One was sentenced to banishment and confiscation of property, but the defendant successfully appealed that the charge was based on personal malice. She was pardoned, the sentence reversed, and her possessions were returned to her.

In 1560, the Inquisition in Aragon debated whether a case involving several women fell under the category of sodomy as no sexual instrument had been used, though there was genital contact. They ended up not prosecuting.

The case of Elena or Eleno de Céspedes in 1587 is complex. After having married as a woman and given birth to a child, they spent a long period living as a man and received official classification as a “hermaphrodite deemed male” in order to marry a woman. This classification was later challenged and the key elements they were charged with were use of an instrument for sex and “contempt for the sacrament of marriage.” Eleno offered the defense that they were a hermaphrodite and had undergone a spontaneous sex change. In the end, the charge made was bigamy (because there was no proof Eleno’s original husband was dead). The sentence was whipping and ten year’s service as a surgeon at a charity hospital.

In 1597 a woman in Mallorca was found guilty of various offences, including practicing love magic to re-attract the passion of two women she’d been sexually involved with. She was sentenced to whipping and exile. The major concern was the accusation of demonic magic.

In 1603, two women with previous sodomy convictions elsewhere were charged as female sodomites, associated with other charges. The trial has extensive details of their cohabitation and alleged sex acts. Because the accusation included the use of an “instrument” the sentence was death, but this was appealed and reduced to whipping and banishment. They had received similarly lenient treatment in a previous trial.

In 1656, two young women in Aragon were accused of sodomy by neighbors who had seen them hugging, kissing, and reaching under each others’ skirts, as well as overhearing conversations about sex. Although there was no evidence of a penetrative instrument being used, the verdict was still labeled “sodomy” but the sentence was limited to whipping and exile and the women were forbidden to live in the same location in the future.

Similar cases can be found in regions of colonial Central and South America where Spanish law held sway.

While not meaning to minimize the harshness of the penalties, the nine cases detailed above are inconsistent even in the presence of multiple aggravating factors such as cross-dressing, entering into a marriage with a woman, and the use of a dildo for sex. All those factors were present in three cases, only one of which resulted in a death penalty, though one other initially was sentenced to death but was pardoned. In two cases that did not involve gender-crossing but where a dildo was involved, the sentence was death but it was commuted in one case. In the four cases involving sex acts but no other aggravating factors, the harshest sentences were whipping and banishment, but one case was not prosecuted at all and in one the defendant was pardoned.

France

French law codes include sex between women as a crime as early as 1270, but the language is often trying to create a parallel with statutes on male sodomy that don’t entirely make sense. Literary references sometimes assume a penalty of death by burning for “buggery between women” but it isn’t clear that this reflected actual legal practice.

A 1405 legal appeal presumes a prior conviction of a woman for engaging in a same-sex relationship, with no mention of using an instrument. The original sentence appears to have involved imprisonment and confiscation of property, which was reversed on the successful appeal on the grounds of good behavior. There is no mention of the woman’s partner, who appears to have been the instigating party.

There are a number of French legal cases from the 16th century. Women were included in legal discussions of punishments for “buggery,” described as “practiced between women who are so abominable that they follow other women, just as or more ardently than the man follows the woman, corrupting each other together without males.” But there seems to be a clear distinction between cases only involving sex acts and those with aggravating factors. In 1533 two women were arrested for sodomy and tortured to try to obtain confessions, but were acquitted due to lack of evidence. The case was referenced after a similar accusation of sex between women in 1563. Again, torture was involved (which, by the way, was the standard method of gaining legal testimony in France, regardless of the nature of the charges), but the witnesses were successfully challenged and the sentence did not include execution.

Three other cases had more serious outcomes and all involved gender-crossing, marriage, and the use of a dildo for sex. In each a woman began living as a man (in one case, along with a group of other women doing so), then married a woman with whom she had a sexual relationship that included a penetrative instrument. But after some period of time—up to several years—the gender-crossing was discovered, due to encountering someone known from her past life or some other reason (but not in any case instigated by the wife), which rendered the marriage and sexual activity criminal and resulted in execution by burning.

Despite continuing references in law codes to the death penalty for “women who corrupt each other, whom the ancients called tribades,” the 17th and 18th centuries turn up no actual executions. A 1715 discussion of the sexual crimes “fricatrices and triballes [sic]” prescribes two years penance per canon law rather than execution, and by the later 18th century references to sex between women in law codes are treated as a hypothetical afterthought. This shift may explain the lesser penalties. In fact, beginning in this period, we see some interestingly nuanced reactions.

In 1601, a person who had been raised as female asked permission to be reclassified as male in order to marry a woman they were having a sexual relationship with. Although the request was controversial, evidently it was successful.

Around 1700, the countess de Murat was charged with sexual relations with women (though there were aggravating factors of violent behavior, disturbance of the peace, and blasphemy). Her sentence was house arrest away from the court.

In 1750, a woman imprisoned for selling illicit newspapers was importuned by the wife of a prison official for sex in exchange for her release from prison. The incident is recorded because she begged to be returned to her original sentence instead, but there is no indication that the woman who made the offer suffered any penalty.

The case of Anne or Jean-Baptiste Grandjean in 1765 presents an interesting contrast to the 16th century executions. She began living as a man at the suggestion of a priest, after confessing her sexual desire for women. She courted several women, married one, and enjoyed a peaceful life until a rejected girlfriend outed her to the police in her new home. The legal charge was “profaning of the sacrament of marriage” with no mention of cross-dressing or their sexual relationship as part of the charges. She was acquitted of the charge on the basis that she honestly believed she had permission to marry, though she was required to return to living as a woman and to separate from her wife. The wife was not charged in any way in relation to the sexual relationship.

By the 18th century, the focus on “instruments” in the commission of female sodomy gave way to the new fascination with the clitoris and the possibility that it might be large enough to enable penetration. In this context, anatomy itself was considered sufficient proof of guilt, whereas “normal” anatomy was considered incompatible with the commission of sodomy. Though female sodomy continued to be condemned, it evidently was no longer prosecuted, and public sentiment was largely enforced through social shaming.

My current data doesn’t include any trials from the 19th century, but I wouldn’t take that to indicate that legal interest in lesbianism ceased during that period—it’s simply a gap in my data. There are references to French laws against women cross-dressing throughout the 19th century and into the early 20th century, but there seem to have been accessible ways to get around that, if desired.

So to summarize the case in France, despite generally draconian French legal practices, capital punishment seems to have been restricted to cases involving gender-crossing, marriage, and the use of a penetrative instrument for sex. But even those factors seem to have become less relevant by the 17th century, when imprisonment seems to have been the worst outcome and even that appears only when politically targeted.

Germany

German law codes, as exemplified by the one associated with Emperor Charles V in the early 16th century, prescribed death by burning for “anyone [who] commits impurity...[including] a woman with a woman.” But we see from examples taken from the 15th through 19th centuries that capital punishment seems to have been reserved for cases with multiple aggravating factors.

A religious recluse was charged in 1444 with engaging in sodomy with another woman, but no outcome of the case is recorded for either woman. Details of the sex acts involved are not given.

In 1477 a woman was tried and executed (by drowning) for having sex with several women, using a penetrative instrument, while presenting as a man. Some of the encounters involved housebreaking and coercion. Some of her female partners were exiled but received no other penalty.

An investigation in 1514 into a girl who was courting other girls was particularly interested in whether she had typical female anatomy, but there doesn’t seem to have been any legal charge made against her, though there is not mention that any of her courtships led to sexual relationships.

In a 1547 case, a woman cross-dressed and married another woman and was punished with banishment. There is no indication that her partner was punished.

In 1721, we have a very complicated case that resulted in execution for one partner while the other was briefly sentenced to a workhouse and then exiled. The more severe sentence was for the woman who cross-dressed and performed an “active” role in penetrative sex using a dildo, but her partner was aware of her physical sex while continuing the relationship, which may explain why she didn’t get off completely. But there were multiple aggravating factors, including domestic violence, participation in a marginalized religious movement, regularly alternating between claiming to be Catholic or Protestant, and entering into a marriage.

A similarly complex case in 1802 also resulted in execution. The defendant cross-dressed, initially to join the military, but then she entered into two marriages (sequentially) with women, in which she used a dildo for penetrative sex. But the key factor in the severity of the punishment also rested on a murder that she and her first wife committed, where the victim was another woman that the defendant had a relationship with. It’s clear from the testimony that her neighbors were well aware of the nature of the women’s relationship, but she wasn’t arrested until she attacked her second wife with a knife, after which sentiment turned against her.

The summary looks similar to what we’ve seen elsewhere. Same-sex desire alone, or being the partner of someone viewed as the “active” sexual partner often carries no penalty, or at worst banishment. Even cross-dressing to enter into a marriage might receive only banishment.  The death penalty is reserved for cases that involve significant aspects of violence, on top of cross-dressing, marriage, and engaging in penetrative sex. The only time a femme partner was executed was when she participated in murder.

Switzerland

There is very little evidence regarding how the relatively severe laws in Switzerland were carried out. I’ve only found one legal record, from 1568, where a woman was executed after confessing (under torture) to engaging in sex with both men and women. But the sentence primarily referenced the heterosexual fornication, as well as blasphemy, so it’s difficult to tell how the same-sex relationship would have been treated on its own.

Netherlands

The modern image of the Netherlands is one of a fairly liberal and freewheeling attitude toward sexuality, but in the early modern period we find a mixture of severe punishments for women having sex with women and disinterest in prosecuting those same acts. Severe punishments were often focused very narrowly in specific times and places. In contrast to the general pattern elsewhere, many of the cases documented in the Netherlands did not involve gender-crossing. So rather than doing a strict chronological review, I’ll group the cases by gender presentation.

Cases involving gender-crossing are included here only when a sexual relationship or marriage is part of the charge. None of these gender-crossing cases included mention of an instrument used for sex.

In the early 15th century a woman confessed to committing buggery while dressed as a man. It is likely her partner was a woman, although the term covered several other possibilities. As part of a pattern of particularly harsh punishments in the southern Netherlands in the 15th century, she was executed. No other circumstances are mentioned.

In the early 17th century, a woman who cross-dressed to serve in the army was tried for admitting a sexual relationship with a widow who also testified to the relationship. She was sentenced to whipping and exile while her partner was also punished (possibly also whipping).

A similar case to the previous came to legal attention due to domestic violence and resulted in exile. I should note that in all cases (not just in the Netherlands), “exile” generally meant only “from the city of residence.”

In another early 17th century case, a woman deserted her husband and cross-dressed in order to marry her female lover. She was tried for sodomy and a death sentence was rejected in favor of exile. There is no mention of penalty for her partner.

A similar case later in the 17th century involved a couple who began living together as women, but then one partner cross-dressed so they could marry. This was discovered when she returned to presenting as a woman and they were tried. The sentence was 12 years exile and a prohibition on the two cohabiting.

While my sources don’t always indicate the specific charges, in a mid 18th century case a cross-dressing soldier married a woman and was tried for fraud and “mocking the laws of marriage”. Her sentence was banishment.

A similar story in the early 19th century had the added complication that the cross-dressing woman also falsely claimed noble rank when she married. So it isn’t clear whether her sentence of 3 years imprisonment for fraud was for the cross-dressing or the claim of nobility.

To sum up this group, cases of cross-dressing, even when sex was confessed to, generally resulted in exile (or, in the 19th century, prison), even when execution was specifically on the table. Whipping was included in rare cases. The one execution was part of a cluster of very severe punishments for female sodomy in the southern Netherlands in the 15th and early 16th centuries.

The group of cases that don’t involve cross-dressing begin with that same region.

In a 14th century case involving two sisters who committed “that filthy work” (which in context clearly means sex), they were able to pay a fine to escape prosecution.

But a mother and daughter who coerced their maidservant into sex in the 15th century were both executed by burning, while the maid (considered less culpable) was simply exiled.

It isn’t entirely clear whether the group of six “female sodomites” who were executed on the same day in the late 15th century had engaged in sex between women, as the term also covered bestiality and sex with non-Christians.

A woman in the early 16th century who had sex with several young girls, along with her accomplice, were whipped and exiled while their younger partners were only whipped.

In the remaining cases, all from the 18th century and mostly in Amsterdam during a period of particular interest in moral cases, the only execution was when murder was also involved due to a romantic triangle. The murderer was executed and the surviving partner was exiled for the sexual aspect.

Otherwise, prison was the sentence, if there was one, with terms of 2-12 years depending on aggravating factors. The longest sentence was for a woman who raped a teenaged girl with a dildo.

A much shorter sentence was given to a woman complained against by her female neighbors for verbal aggression including sexual solicitation and boasting of sex with women. But the trial does not appear to have been focused on a specific sex act.

A group of four women were sentenced to prison when they confessed to engaging in sex acts. But in a highly similar case, where the women’s neighbors spied on them and saw some of the five women engaged in sex, there was no confession and they were only given a verbal warning.

Even when a case came to the attention of the courts, there weren’t necessarily formal consequences. Two women who lived together and had been witnessed by their landlady engaging in sex were not prosecuted. And similarly a deposition about a married woman who had been caught engaging in sex with her maid never went to trial.

So of these cases of sex between women with no cross-dressing, only an accompanying murder resulted in execution, while the remaining cases are about evenly divided between a prison term or exile, and no consequence at all.

Setting aside the aggravating factors and regardless of whether cross-dressing was involved, whipping appears as a punishment up through the 17th century and exile shifts over to imprisonment in the 18th century, which is probably a general shift separate from the specific charges involved. One historian notes that with the introduction of the French penal code in the Netherlands in the early 19th century, same-sex acts were no longer criminalized.

England (and the British Isles generally)

It is somewhat simplistic to say that lesbianism was never illegal in England, as Caroline Derry points out in her study of the subject. But it’s equally misleading to say that it was illegal (before the 20th century, when things get a bit muddled). And, as Derry points out, even when there were no statutes against lesbian acts, the presence of those acts accompanying a different charge could affect the severity of sentencing under a legal system where judges had a great deal of discretion.

There was occasional academic discussion among jurists whether the “Buggery Act” of 1533 which was the basis for criminalizing male homosexuality in England also covered women. Some argued that the language of the act—referencing “mankind”—was generic in application, while others interpreted “buggery” as something that only men could commit. In any event, there’s no evidence that any women were prosecuted under the Buggery Act in England.

Scottish law was different, and there is one record form 1625 of two women being charged with sodomy. They were sentenced to separate from each other but I haven’t found any indication of any other penalty. So keep in mind that absolute statements about the lack of laws against lesbianism only apply to England and not the UK as a whole.

The primary context in which the possibility of sexual relations between women came under scrutiny of the law was when one partner was presenting as a man, and especially when the couple engaged in a marriage. But a continuing theme is how seriously the courts endeavored to keep any discussion of sex itself out of these trials.

Female cross-dressing, all by itself, drew legal attention in England, from at least the 15th century. It was part of the apparatus for controlling women’s public behavior and even when the cross-dressing was done as a joke with no intent to fool the spectators, it could be treated as “unruly behavior” and subject to sanctions. Not consistently, and perhaps not even a majority of the time—concern with cross-dressing seems to have waxed and waned at various times. The primary concern was that it enabled women to move about in public, free of the scrutiny that women’s behavior normally received. And while there was a general sense that cross-dressing women might be sexually transgressive, the concern was usually about illicit sex with men.

There is a legal record from 1493 in London involving a woman who brought a cross-dressed concubine to her room and kept her there. The brief record doesn’t clarify whether “concubine” means that the two had a sexual relationship or whether the cross-dressed woman was simply a sex worker. No penalty was imposed.

That brings us to the central group of cases where women in an intimate relationship were charged and tried for an offence related to the relationship: those falling generally under the heading of “female husbands.” In order to simplify the discussion, I’m side-stepping the question of how the husbands in these relationships might have viewed their gender identity, either in a modern context or in their own time. The relevant point is that the courts they interacted with considered them to be women and engaged with them as such. As noted previously, the fact that they were—or were believed to be—in a sexual relationship may have affected how they were treated in the courts, but the actual charges never include a sexual offense. And we should also note that being discovered to be a “female husband” did not invariably result in legal charges. Such couples might be known to their neighbors and not molested. They might be discovered and pressured to cease presenting themselves as husband and wife, but with no other consequence. Or they might be charged with something in court only to have the charges dropped. As a general rule, only the cross-dressing partner would be charged, which emphasizes the point that it was the gender transgression, not the same-sex relationship, that was the focus of legal concern.

For all those reasons, I’ll run through some examples that focus on the actual legal charges, the reason the situation came to legal attention, and the consequences for the defendant.

In 1680 a woman sued her cross-dressing spouse for an annulment on the basis of bigamy, as the spouse had been married to a man at the time of their wedding. The wife was aware of her spouse’s gender before the wedding. The annulment was granted but there is no evidence of other penalties.

A less well documented case in 1694 seems to have also involved bigamy, but this time with the female husband marrying two women. The specific charge is not recorded but likely involved fraud. The defendant was sentenced to whipping and hard labor.

In 1720, Sarah Ketson was imprisoned after a complaint by her fiancée that the courtship had been “with an intent to defraud and cheat her.”

The most notorious female husband, due to being fictionalized by novelist Henry Fielding, was Mary Hamilton, whose wife made the matter public in 1746 when she discovered that her husband was a woman—after a period when the two had sexual relations. But the legal charge—eventually determined to be vagrancy—was made by the local town council who simply didn’t like the situation and shopped around to find an applicable crime. Hamilton was sentenced to whipping and hard labor.

The courts had a harder time convicting Samuel Bundy, aka Sarah Paul. Paul’s neighbors became suspicious about her marriage to Mary Parlour and got her charged with fraud. But Parlour refused to support the prosecution and the charges were dropped, though the two separated after that.

While many female husbands entered into marriage sincerely, Ann Marlow became Charles Marlow to marry three different women in turn to extract money and clothing from them. Marlow was convicted of fraud in 1777 and pilloried and imprisoned for 6 months.

In the 19th century, female husbands mostly came under the law when some other offense brought them to the attention of authorities. Mary Chapman’s marriage to Isabella Watson came into question in 1835 due to an assault between Watson and her sister. Although Chapman was not involved in the assault, the magistrate complained of not finding any basis for charging her.

When Harriet Stoakes looked for a legal complaint against her abusive husband in 1838, she mentioned to her solicitor that her husband was a woman. The court mediated a separation but no charges were brought.

Neither of these last two involved charging women for their relationships, the matter was simply a curiosity noted in passing. And there are no other cases recorded after these.

So, in summary, the closest England comes to prosecutions for lesbianism was cases of marriage involving one partner passing as a man. The prosecutions primarily involve working class people, often in very marginalized circumstances. The charges typically involved some type of fraud or deception, although in a few cases the community simply wanted to find an offense that would stick. For the charges to stick, it generally required the wife to be unhappy about the situation. Sentences in the 17th and 18th centuries generally involved corporal punishment and imprisonment, but by the 19th century convictions for female-husband marriages cease. In all cases, only the cross-dressing partner is prosecuted, even when the wife was aware of their identity, pointing up that gender and not sexuality was the aggravating condition.

Three other cases are worth noting, but do not involve prosecutions for a same-sex relationship in itself. In the early 19th century, the notorious trial of Pirie and Woods against Cumming Gordon involved a slander accusation against the latter for spreading a rumor that the two had a sexual relationship. Although the nature of the relationship was relevant to the trial, it was not central to the charge. In the late 19th century, the Codrington divorce trial raised the specter of a lesbian relationship as a contributing basis for divorce, but the matter was only raised as a threat and never made a matter of record and there was no question of a legal charge for it. In 1880, revisions to the legal age of sexual consent included an allowance for the possibility of sexual assault between women, but it’s hard to consider this as creating a law against lesbianism per se.

So if you were not a working-class female husband who came under legal scrutiny due to making your wife mad, you probably didn’t have to worry much about the law.

United States

Tracing legal attitudes towards lesbianism in the United States is complicated by the variety of approaches in different colonies and states. The information I have is very anecdotal, but in part this is because I haven’t prioritized the several US-focused queer history books on my shelves. I’ve done a quick peek into Michael Bronski’s A Queer History of the United States but their discussion of laws and prosecutions focuses almost exclusively on sex between men, with a silent assumption that women’s situation was included. And the book fails to mention the specific cases involving women found in my other sources, so I don’t think it would add much to this current summary. Much of the American legal history addressing same-sex relations is specific to the 20th century and therefore out of scope for my project.

Starting with the colonial period, drafters of the first law codes in the English New World colonies at first included the death penalty for sodomy whether male or female, but that draft was never implemented. Mid-17th century law codes recorded in Rhode Island and New Haven (Connecticut) specifically mentioned sex between women—or at least women committing acts “against nature,” which is a standard euphemism, but I’ve found no evidence of cases tried under them. Colonial American laws in the 17th century generally omitted women from sodomy laws, but there are a few records that address the subject.

In 1642, two female domestic servants in Boston were whipped and fined for “unseemly practices...attempting to do that which man and woman do” along with other unruly behavior such as insolence toward their employer.

In 1649, also in Boston, two married women were prosecuted for “lewd behavior each with other upon a bed.” The younger partner—who was only 15—received a verbal warning, while the older partner was sentenced to make a public confession of her behavior and warned that repeat offenses would be dealt with more harshly. There is no indication of any aggravating circumstances such as cross-dressing or the use of a dildo.

Cross-dressing by itself resulted in a number of prosecutions, but that is out of scope unless we have evidence of a romantic or sexual relationship. I’ll speak more on that topic, but first want to digress into a very singular case, that of Thomas or Thomasina Hall, who most likely was intersex and who alternated between living as a woman and a man during their lifetime. Hall had grown up as a woman in England, then went to Virginia where they alternated between wearing male clothing and performing male-coded occupations, then wearing female clothing and engaging in female-coded occupations. In the context of being accused of an illicit sexual relationship with a female servant, the question of Hall’s gender assignment became a matter of legal scrutiny. In the end, the question of Hall’s sexual behavior was dropped and the case entirely focused on the question of gender. The authorities punted the question and officially declared Hall to be both male and female and to wear clothing of both sexes to advertise this. There were no legal statutes being upheld—no one had envisioned the situation—but it’s clear that gender and not sexuality was the greatest concern.

In the 18th century, we continue to see the occasional prosecution of simple cross-dressing, usually addressed with fines, if at all. But prosecutions for sex between women fall off the radar, in large part because the legal authorities became less interested in prosecuting people’s personal lives. Furthermore, at this time the culture of romantic friendships created a context in which anything short of being caught in flagrante delicto could be considered an acceptable and even desirable part of feminine behavior. As acceptable romantic behavior between women included passionate kisses and bed-sharing, the occasions for legal concern were limited.

When cross-dressing intersected with an overt marriage-like relationship with another woman, the sexual aspect could become an aggravating factor in how the gender transgression was addressed, as in the late 19th century case of Milton Matson in California, who was betrothed to a woman when discovered to be physiologically female in the context of a criminal arrest for an unrelated offense. But even in this case, Matson evaded penalties by embracing the role of cross-gender performer at a time when subcultural “slumming tours” had become a popular pastime.

Queer elements always had the potential to add a layer of sensationalism to other crimes. It’s unlikely that the late 19th century story of Alice Mitchell murdering her lover in a jealous rage would have had the same legs except that her lover was female. Ward’s story became a media sensation, drawing on themes of French decadent literature and the tradition of murder ballads. But Mitchell was transferred from the legal establishment to the medical one and pronounced insane.

Conclusions

When we look at the patterns of prosecutions as a whole, there is a consistent pattern that the most serious legal concerns around women who loved women came when one of the partners usurped the role and privileges of a man, whether by living socially as a man, or using a penetrative instrument for sex. In many cases, it’s clear that the primary “crime” is daring to claim a male role in society, as the female partners of the accused are not charged. There were times and places when women might be prosecuted—and even executed—for relationships that involved none of these factors but they tend to be limited in scope and motivated by other social factors rather than part of an ongoing legal tradition. Another overall pattern, when looking at specific cases, is that a majority of prosecutions (though, again, not all by any means) occur when there is some other criminal act, especially violence. To what extent should we extrapolate cases deriving from violent sexual assault or domestic violence to indicate a general legal concern with sex between women? So as we see, the question of when and where it was “illegal to be a lesbian” is fraught with complexities and layers of interpretation, even if we use a generous definition of what it means to “be a lesbian” in history. Those complexities inform the question of what concerns a fictional character might have and what hazards she might face. It’s a reasonable generalization that in every era and culture, it would have been possible to have some sort of lesbian relationship that did not provoke legal sanctions. But some types of relationships would have been more hazardous than others.

Show Notes

In this episode we talk about:

• Evidence for how romantic and sexual relations between women were treated in legal systems in western culture
• References
  • Benbow, R. Mark and Alasdair D. K. Hawkyard. 1994. “Legal Records of Cross-dressing” in Gender in Play on the Shakespearean Stage: Boy Heroines and Female Pages, ed. Michael Shapiro, Ann Arbor. pp.225-34.
  • Benkov, Edith. “The Erased Lesbian: Sodomy and the Legal Tradition in Medieval Europe” in Same Sex Love and Desire Among Women in the Middle Ages. ed. by Francesca Canadé Sautman & Pamela Sheingorn. Palgrave, New York, 2001.
  • Boehringer, Sandra (trans. Anna Preger). 2021. Female Homosexuality in Ancient Greece and Rome. Routledge, New York. ISBN 978-0-367-74476-2
  • Borris, Kenneth (ed). 2004. Same-Sex Desire in the English Renaissance: A Sourcebook of Texts, 1470-1650. Routledge, New York. ISBN 978-1-138-87953-9
  • Brown, Kathleen. 1995. “’Changed...into the Fashion of a Man’: The Politics of Sexual Difference in a Seventeenth-Century Anglo-American Settlement” in Journal of the History of Sexuality 6:2 pp.171-193.
  • Burshatin, Israel. “Elena Alias Eleno: Genders, Sexualities, and ‘Race’ in the Mirror of Natural History in Sixteenth-Century Spain” in Ramet, Sabrina Petra (ed). 1996. Gender Reversals and Gender Cultures: Anthropological and Historical Perspectives. Routledge, London. ISBN 0-415-11483-7
  • Crane, Susan. 1996. “Clothing and Gender Definition: Joan of Arc,” in Journal of Medieval and Early Modern Studies 26:2 : 297-320.
  • Crawford, Patricia & Sara Mendelson. 1995. "Sexual Identities in Early Modern England: The Marriage of Two Women in 1680" in Gender and History vol 7, no 3: 362-377.
  • Cressy, David. 1996. “Gender Trouble and Cross-Dressing in Early Modern England” in Journal of British Studies 35/4: 438-465.
  • Crompton, Louis. 1985. “The Myth of Lesbian Impunity: Capital Laws from 1270 to 1791” in Licata, Salvatore J. & Robert P. Petersen (eds). The Gay Past: A Collection of Historical Essays. Harrington Park Press, New York. ISBN 0-918393-11-6 (Also published as Journal of Homosexuality, Vol. 6, numbers 1/2, Fall/Winter 1980.)
  • Dekker, Rudolf M. and van de Pol, Lotte C. 1989. The Tradition of Female Transvestism in Early Modern Europe. Macmillan, London. ISBN 0-333-41253-2
  • Derry, Caroline. 2020. Lesbianism and the Criminal Law: Three Centuries of Legal Regulation in England and Wales. Palgrave Macmillan. ISBN 978-3-030-35299-8
  • Duggan, Lisa. 1993. “The Trials of Alice Mitchell: Sensationalism, Sexology and the Lesbian Subject in Turn-of-the-Century America” in Queer Studies: An Interdisciplinary Reader, ed. Robert J. Corber and Stephen Valocchi. Oxford: Blackwell. pp.73-87
  • Eriksson, Brigitte. 1985. “A Lesbian Execution in Germany, 1721: The Trial Records” in Licata, Salvatore J. & Robert P. Petersen (eds). The Gay Past: A Collection of Historical Essays. Harrington Park Press, New York. ISBN 0-918393-11-6 (Also published as Journal of Homosexuality, Vol. 6, numbers 1/2, Fall/Winter 1980.)
  • Fernandez, André. 1997. “The Repression of Sexual Behavior by the Aragonese Inquisition between 1560 and 1700” in Journal of the History of Sexuality 7:4 pp.469-501
  • Friedli, Lynne. 1987. “Passing Women: A Study of Gender Boundaries in the Eighteenth Century” in Rousseau, G. S. and Roy Porter (eds). Sexual Underworlds of the Enlightenment. Manchester University Press, Manchester. ISBN 0-8078-1782-1
  • Hindmarch-Watson, Katie. 2008. "Lois Schwich, the Female Errand Boy: Narratives of Female Cross-Dressing in Late-Victorian London" in GLQ 14:1, 69-98.
  • History Project, The. 1998. Improper Bostonians. Beacon Press, Boston. ISBN 0-8070-7948-0
  • Holler, Jacqueline. 1999. “’More Sins than the Queen of England’: Marina de San Miguel before the Mexican Inquisition” in Women in the Inquisition: Spain and the New World, ed. Mary E. Giles. Johns Hopkins University Press, Baltimore. ISBN 0-8018-5931-X pp.209-28
  • Hubbard, Thomas K. 2003. Homosexuality in Greece and Rome: A Sourcebook of Basic Documents. University of California Press, Berkeley. ISBN 978-0-520-23430-7
  • Hutchison, Emily & Sara McDougall. 2022. “Pardonable Sodomy: Uncovering Laurence’s Sin and Recovering the Range of the Possible” in Medieval People, vol. 37, pp. 115-146.
  • Karras, Ruth Mazo. 2005. Sexuality in Medieval Europe: Doing Unto Others. Routledge, New York. ISBN 978-0-415-28963-4
  • Lansing, Carol. 2005. “Donna con Donna? A 1295 Inquest into Female Sodomy” in Studies in Medieval and Renaissance History: Sexuality and Culture in Medieval and Renaissance Europe, Third Series vol. II: 109-122.
  • Lucas, R. Valerie. 1988. “’Hic Mulier’: The Female Transvestite in Early Modern England” in Renaissance and Reformation 12:1 pp.65-84
  • Merrick, Jeffrey & Bryant T. Ragan, Jr. 2001. Homosexuality in Early Modern France: A Documentary Collection. Oxford University Press, New York. ISBN 0-19-510257-6
  • Michelsen, Jakob. 1996. “Von Kaufleuten, Waisenknaben und Frauen in Männerkleidern: Sodomie im Hamburg des 18. Jahrhunderts” in Zeitschrift für Sexualforschung 9: 226-27.
  • Monter, E. William. 1985. “Sodomy and Heresy in Early Modern Switzerland” in Licata, Salvatore J. & Robert P. Petersen (eds). The Gay Past: A Collection of Historical Essays. Harrington Park Press, New York. ISBN 0-918393-11-6 (Also published as Journal of Homosexuality, Vol. 6, numbers 1/2, Fall/Winter 1980.)
  • Murray, Jacqueline. 1996. "Twice marginal and twice invisible: Lesbians in the Middle Ages" in Handbook of Medieval Sexuality, ed. Vern L. Bullough and James A. Brundage, Garland Publishing, pp. 191-222
  • Puff, Helmut. 1997. “Localizing Sodomy: The ‘Priest and sodomite’ in Pre-Reformation Germany and Switzerland” in Journal of the History of Sexuality 8:2 165-195
  • Puff, Helmut. 2000. "Female Sodomy: The Trial of Katherina Hetzeldorfer (1477)" in Journal of Medieval and Early Modern Studies: 30:1, 41-61.
  • Robinson, David Michael. 2001. “The Abominable Madame de Murat’” in Merrick, Jeffrey & Michael Sibalis, eds. Homosexuality in French History and Culture. Harrington Park Press, New York. ISBN 1-56023-263-3
  • Roelens, Jonas. 2015. “Visible Women: Female Sodomy in the Late Medieval and Early Modern Southern Netherlands (1400-1550)” in BMGN - Low Countries Historical Review vol. 130 no. 3.
  • Sears, Clare. 2015. Arresting Dress: Cross-Dressing, Law, and Fascination in Nineteenth-Century San Francisco. Durham: Duke University Press. ISBN 978-0-8223-5758-2
  • Traub, Valerie. 2002. The Renaissance of Lesbianism in Early Modern England. Cambridge University Press, Cambridge. ISBN 0-521-44885-9
  • Van der Meer, Theo. 1991. “Tribades on Trial: Female Same-Sex Offenders in Late Eighteenth-Century Amsterdam” in Journal of the History of Sexuality 1:3 424-445.
  • Velasco, Sherry. 2000. The Lieutenant Nun: Transgenderism, Lesbian Desire and Catalina de Erauso. University of Texas Press. ISBN 0-292-78746-4
  • Velasco, Sherry. 2011. Lesbians in Early Modern Spain. Vanderbilt University Press, Nashville. ISBN 978-0-8265-1750-0
  • Vermeil. 1765. Mémoire pour Anne Grandjean. Louis Cellot, Paris.
  • Vicinus, Martha. 2004. Intimate Friends: Women Who Loved Women, 1778-1928. University of Chicago Press, Chicago. ISBN 0-226-85564-3

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