By Anna Burns
The Holy Roman Empire can often be difficult to talk about in sweeping terms because of its decentralized nature. But in 1530, the Constitutio Criminalis Carolina (also known as the Lex Carolina), would mark the first body of German criminal law and attempt to unite the various principalities and kingdoms in the Empire. It also set the foundation for the prosecution of queer identity and life.
Agreed upon in 1530 and ratified two years later at the Diet of Regensburg, the Lex Carolina was an attempt to centralize the numerous criminal laws and legal procedures that existed across the Roman Empire. The code was quite comprehensive, covering everything from the legal requirements of torture to witchcraft to “immoral sexual relations against the order of nature,” outlawed in paragraph 116. This declaration against homosexuality was, in part, the result of the work of St. Thomas Aquinas, whose teachings had influenced European thought to stigmatize homosexual behavior for several centuries. Unlike earlier laws, such as those enacted by the Italian city states, the Lex Carolina criminalized female homosexual behavior as well. For such a crime, the punishment was death by fire.
Curiously, the loose wording of the Lex Carolina meant that it was also illegal for a Christian to have sexual relations with a non-Christian. Typically, when had with either a Jewish or Romani woman, the man often received leniency.
Due in large part to the fragmented nature of the Holy Roman Empire, the actual effect of the Lex Carolina varied drastically by location. These laws would remain binding in the Empire until 1806, when the Empire was dissolved.
Sadly, most documentation of queer identity during this period has been lost. Thus, we have few accounts to create an annaliste history. The strongest sources that remain, however, are the testimonies found in court records.
For example, we look to the life and death of Catharina Linck, detailed only by the court documents of their trial in 1721. Linck—who was assigned female at birth (AFAB), but based on available accounts was possibly trans—was executed for the crime of sodomy. Prior to this incident, Linck presented as male so that they could join several different armies—armies that they would, on occasion, desert. After breaking off from the Polish army, they met a woman and romantic interest, Catharina Mühlahn. At this point, Linck would often wear men’s clothing and adopted a more masculine name. The court records detail that Linck and Mühlahn engaged in sex with one another, including with a strap-on-like device Linck fashioned. Mühlahn’s mother was displeased with the relationship, as she suspected Linck of being AFAB, and, during a confrontation, ripped open Linck’s pants, stole their packer, and delivered it to the court to press charges. There was much debate between judges on the proper punishment. For one, the Bible was silent on sexual relationships between two AFAB people. Secondly, the judges grappled with the question of whether, since a strap-on was used, the pair’s sexual acts counted as true intercourse. However, in the end, the court ordered Linck to be beheaded and burned, and jail time for Mühlahn.
Though the Constitutio Criminalis Carolina wasn’t often used in practice, it did have a lasting impact beyond the Holy Roman Empire. For example, the new German state wrote into its own criminal code paragraph 175, which banned both bestiality and male homosexual behavior. Interestingly, female homosexual behavior was not outlawed—though in 1907, there was a move to ban such acts, but it failed to pass, mostly because of debates over how to define sex between two women. The start of the modern gay rights movement was in opposition to paragraph 175—a movement which started in earnest in the 1890s with the Social Democratic Party’s attempts to repeal the language in 1898 and 1929. During the Weimar Republic years (1918–33), queer life would bloom despite paragraph 175, with the founding of the Institute of Sex Research by Dr. Magnus Hirschfeld in 1919. Dr. Hirschfeld was also one of the first, if not the first person to give hormone replacement therapy to trans people. However, under the Nazi regime, homosexuality would once again be considered a serious crime. Ultimately, paragraph 175 wasn’t fully repealed until 1988—meaning that there are people still alive today who were convicted under it. Though it has been almost a half millennium since the Lex Carolina was passed into law, it is amazing, and disappointing, that it still leaves vicious scars on queer lives.
Anna Burns is a graduate student in psychology at Alabama A&M University. Her clinical interest lies in sex & gender. She also likes otters, reading, talking about psychology, and has more knowledge of Star Trek than may, strictly speaking, be wise.
