Jan Löfström. Journal of Homosexuality. Volume 35, Issue 3-4. 1998.
In the history of Western societies explicit legal sanctions against homosexual acts between women have been distinctly less frequent than sanctions against homosexual acts between men. Contrary to the “myth of lesbian impunity,” there have been penal codes in West European countries that applied not only to men’s but also to women’s homosexual conduct (Crompton 1980/81; cf. Brown 1989). It has also been argued that legal harassment of women’s homosexuality has actually been implicit in measures whose object purportedly was some less specifically described misdemeanor by women, for example “crimes against chastity” (Robson 1992). However, a formally symmetrical treatment of women and men in the explicit legal sanctions against homosexuality has been rather unusual in Western societies, also still in the nineteenth and twentieth centuries. In the encyclopedic study of homosexuality that Magnus Hirschfeld published in 1914, we can see that most of the European and North American penal codes of the time either criminalized homosexuality between men only or they allowed consensual homosexuality between adults (Hirschfeld 1914, 842-861). There were attempts to criminalize women’s homosexual acts in Germany in 1909-1911, and in England in 1921, but they failed (Stumke 1989, 50-52; Weeks 1989, 105-106).
Yet there were exceptions to this general pattern of legislation on homosexuality. The Austrian (1852), Swedish (1864), and Finnish (1889) Penal Codes, and the Codes of many of the Swiss cantons in the late nineteenth century criminalized homosexuality between men and women equally (Hirschfeld 1914, 842-861). We may presume that different cultural, legal, and social traditions and perhaps also contingent factors were conducive to the criminalization of women’s homosexuality in different countries, and it would be an interesting topic for a comparative study to explore the background of such legislation. In this paper, however, I only discuss the social and cultural setting of the criminalization of women’s homosexual acts in the Finnish Penal Code of 1889.
The main question in my discussion is why women’s homosexual acts were criminalized in Finland so easily? Why was this so? In fact, why was there hardly any debate on the issue? I approach these questions from a social-historical perspective. The contours of my argument are probably not incompatible with the contours of a psychoanalytically informed study like Lynda Hart’s, on the dialectic absence and presence of the image of violent women and lesbian women in the discursive fields of law, medicine, and belles lettres (Hart 1994). However, I think it is pertinent to focus here on the historically specific mode of perceiving gender relations within the specific configuration of social structure that was late-nine- teenth-century Finland. It is only then that we can hope to apprehend the complex ideological underpinnings of the criminalization without falling back to easy generalizations and reappropriation of gender-historical presumptions which also in today’s gay and lesbian scholarship are often derived from analyses of the nineteenth- and twentieth-century Anglo- American middle-class discourses.
The Criminalization and the Legislators
In Finland homosexual acts were explicitly criminalized in the 1889 Penal Code which was passed in the Estates in 1888. Earlier a part of the Swedish Kingdom, Finland had been annexed to the Imperial Russian Empire as an autonomous Grand Duchy in 1809, but the old Swedish law had remained in force also after the annexation. As the pace of social change in Finnish society accelerated and new industries began to develop in the nineteenth century, there was an increasing need to bring the country’s legislation up to date. As part of this, it was considered pertinent that the criminal law dating back to the Swedish era should be revised and codified.
Some of the old Swedish laws had vaguely referred to “sins of Sodom,” and The Appendix of 1608 in the printed editions of the medieval National Law Codex explicitly invoked Leviticus as a source of criminal justice which effectively entailed a legal prohibition against homosexual acts. However, in The National Law Codex of 1734 only the crime of bestiality was explicitly mentioned. This notwithstanding, it was possible for the courts to sentence those guilty of homosexual acts on grounds of analogic interpretation of the sanction against bestiality (see Jonas Liliequist, in this volume). The Codex of 1734 remained in force in the Grand Duchy of Finland also after 1809. However, as the so-called legality principle was adopted in Finnish legal science in the nineteenth century, the legal doctrine predicated that a person could only be punished for an action if this had been explicitly singled out as a legal offence in criminal law. Thus also homosexual acts had to be incorporated in the penal code, if they were to be punishable in the first place.
Drafting the penal code was a protracted process, but finally the new Penal Code was passed in 1888; it was promulgated in 1889, but it only came into force in 1894. The sentence for homosexual acts in the Penal Code was up to two years in prison. By way of comparison, the sentence for procuration was up to three years in hard labor, for rape up to ten years in hard labor, and for adultery up to one year in prison. There was no minimum sentence for homosexual acts. The formulation of the section was: “…who fornicates with another person of the same sex…” From the lectures on criminal law that the chair of the Estates Penal Code Committee, Professor Jaakko Forsman, gave in the 1890s, we can infer that the sanction was intended to apply not only to incidents of sexual intercourse proper-“satisfaction of sexual desire”-but also to incidents of stimulation of sexual desire and to “violations of sexual morals.” As Forsman short-spokenly stated in his lectures, “this species of fornication can be committed in various ways” (Forsman 1899, 657-658; cf. 127).
The inclusion of women in this section was a last-minute decision. In the 1870s and 1880s there had been two Penal Code Committees appointed by the Government, but in the proposals that they had drafted they suggested a criminalization of homosexual acts between men only (Lofstrom 1991, 18-19). Nothing indicates that there had been any discussion in the legislative bodies prior to 1888 on whether women’s homosexual acts should be included in criminal law. The Proposal of His Majesty for a New Penal Code of Finland that was introduced to the Estates in 1888 also concerned itself with homosexual acts between men only, but the Estates Penal Code Committee modified the proposal. In a Memorandum, the Committee explained the resolution: “The Committee has considered that [the section on homosexual offenses] has to be extended so that unnatural fornication will become punishable also when a woman fornicates with another person of the same sex.”
According to the testimony of one representative, there was a vote on the modification in the Penal Code Committee. However, I have found no further detail on the procedures in the Committee. The minutes of Estates Committees in the nineteenth century survive only sporadically, and in some occasions there never were any official minutes.
The modification effected by the Penal Code Committee did not pass completely unnoticed in the Estates. When the final draft of the Code was perused in the Estate of Burgesses, one of the representatives delivered: “I do not wish to get into any further discussion or debate regarding the unpleasant affairs which are referred to in this section, but I simply wish to propose that the Burgesses would support the formulation that the paragraph has in the Proposal of His Majesty.”
A number of representatives agreed with this, and one of them also recommended that the section on homosexual offenses should be omitted altogether. Considering the rather curt deliverance, I assume that the latter intervention was propelled by a sympathy for the ancient “politics of silence” rather than by liberal views on sexual mores. None of these speakers gave any explicit reason for their proposition. The Estate of Burgesses decided unanimously to recommend a reformulation of the section to the effect that it would apply to men only. However, the other three Estates -the Nobility, the Clergy, and the Peasants -apparently saw nothing objectionable in the criminalization of men’s and women’s homosexual acts as they recommended no alterations in the section, nor was there any other discussion on the issue of homosexuality. As the Estates were also under pressure to complete the protracted penal code reform without further delay, there was little interest toward repeated readings of the proposal; thus the section on homosexual offenses was not altered by the Estates anymore.
The decision to criminalize homosexual acts between women was not a haphazard move. The legislators themselves proclaimed they considered it pertinent to extend this legal sanction to women. Yet one may ask as to how much they knew about homosexuality, and women’s homosexuality in particular?
The person in the 1888 Estates Penal Code Committee who probably was the most well versed in contemporary and ancient criminal law was the aforementioned chair of the Committee, Jaakko Forsman (1839-1899), a professor in criminal law and in history of law at the University of Helsinki. Later he was often called “The Father of Finnish Criminal Law.” This tribute derived not only from the fact that he was a key figure in drafting the Penal Code in the 1880s, but also the lectures that he subsequently gave on criminal law were regarded as the authoritative and even authentic interpretation of the Penal Code (Klami 1981, 21). He obviously knew something about sanctions against homosexuality in Western criminal law as he had discussed the issue in his lectures in 1881-1883 and 1886-1888, though it seems that in these occasions he had mostly been quoting a textbook in German criminal law by Albert Berner, whose work also in general had had great influence on Forsman. In these lectures Forsman had discussed the issue briefly and from a historical- comparative perspective only; he had not addressed practical problems of verification or the like, and he had not raised the issue of women’s homosexuality either.
The rather unobtrusive discussion on homosexuality in his lectures notwithstanding, it seems to me that Jaakko Forsman was keen on issues of sexuality and forensic medicine. In his notebooks of the mid-1880s we can see that he wished to have recent studies on these subjects ordered for the Helsinki University Library. For example, he ordered Richard von Krafft-Ebing’s study Psychopathia Sexualis, published first in 1886, from a bookseller’s in Berlin around New Year 1887. It is also an interesting detail that in a letter to a friend of his, in 1884, Forsman asked the friend to borrow him a copy of the newly published book Giftas (Married Life) by the celebrated Swedish author August Strindberg. The book had caused an outcry in Sweden because of its allegedly relativist views on sexual morals, and Forsman explained to his friend that he wanted to see what was “too much even for the Swedish tastes nowadays” (quoted in Ylikangas 1989, 31-32). One of the stories in the book is a discussion on homosexuality from the perspective of contemporary medical theory (Strindberg 1886, 65-81). These medical views had actually been discussed in a Finnish medical journal in 1882, in the context of a case study of female homosexuality (Backman 1882; see also Antu Sorainen, in this volume).
Thus, information on recent theories of homosexuality was available for a person who wanted to keep up with the times like Jaakko Forsman apparently did. We do not know if it was on his initiative that women’s homosexual acts were included in the 1889 Penal Code, but he is a likely source of the idea. In the 1888 Estates Penal Code Committee there were no physicians; half of the Committee’s members were jurists and the others were civil servants, peasants, and clergymen. Jaakko Forsman had been a member of the Penal Code Revision Committee in 1881-1884, and this Committee had proposed a criminalization of men’s homosexuality only. However, the issue of sexual pathology was taken up more actively in Western medical literature in the 1880s, as illustrated by Krafft-Ebing’s Psychopathia Sexualis. Thus, it can be that also Forsman’s conception of homosexuality developed in the years prior to 1888.
So far we have discussed our subject on a rather individualized level, but it is evident that what is deemed pertinent, or even feasible, in legal regulation depends on the country’s social, political, and cultural fabric and on the tradition of legal regulation. Irrespective of where the initiative came from, the inclusion of women in the sanction against homosexuality in the Finnish Penal Code can hardly be explained with reference only to penal codes of some other countries. The model for the structure of the Penal Code came from the Swedish (1864) and German (1871) Penal Codes (Backman 1976, 160); whereas the former criminalized women’s homosexual acts, the latter did not. It is worth mentioning that though there was a penal code reform in progress in the 1880s also in Russia, the Finnish Penal Code was not influenced by Russian criminal justice, nor did the Russian administration intervene in the law reform in Finland (Tyynila 1989, 466-467).
Regarding the cultural and social factors that shape the attitudes to women’s homosexual relations, Jeffrey Weeks has sketched the pertinent background as follows; factors like these are also constitutive of the social and cultural framework of the legal regulation, or for that matter nonregulation, of women’s homosexual relations: “…the roles that society assigned women; the ideology which articulated, organised and regulated this; the dominant notions of female sexuality in the ideology; and the actual possibilities for the development by women of an autonomous sexuality …” (Weeks 1989,116).
It is noteworthy that women’s homosexual acts were criminalized in the Estates in Finland without much ado. We can assume that this sedate atmosphere resonated with the current ideology that articulated gender roles, including sexual roles, in Finnish society and culture in the late nineteenth century. It is to these notions that we will now turn our attention. For reasons which become clear, we start in rural culture.
Notions of Gender and Sexuality in Preindustrial Finnish Rural Culture
In the late nineteenth century, Finnish society was still to a great extent predominated by agriculture and its subsidiary industries and by rural- agrarian ways of life. According to a statistics, no less than eighty-one percent of the economically active population in Finland lived off the forest and the land in 1890; in Sweden the figure was sixty-three percent and in England (1891) only eleven percent (Alestalo 1986, 26-27). Nine out of ten people in Finland lived in rural communes in 1890 (Suomen taloushistoria, Vol. 3, 25). Also most of the towns were small; the capital, Helsinki, had only approximately 90,000 inhabitants in 1900. Still in the late-nineteenth-century, agriculture and animal husbandry were important subsidiary industries to many urban dwellers; the rhythm of life following harvest and fishing seasons was everyday reality in lower classes but also among tradespeople and artisans (Talve 1990, 330, 336). Thus in people’s occupations and living environments the rural-agrarian element in Finnish society was prominent.
As concerns the prevalent notions of gender and gender relations in preindustrial rural culture, there is no doubt that there was a hierarchy where the man was the category of superior value and the woman was the category of inferior value. As the norm, the man was the head of the household who would make the decisions and represent the household out in the public; this was the pattern in the late seventeenth century, as well as still in the early twentieth century (Apo 1995, 203-216; Pylkkanen 1990, 426-429). In practice, however, the balance of power between the spouses was more nuanced. As the old standard form of wedding announcement put it, the wife in the household was endowed with “half of the bed, the locks, and the keys”; she would rule over everyday household economy. Household was the basic unit in which the wife and the husband had both rights and obligations and the wife had a comparatively strong position (Pylkkanen 1990).
In preindustrial rural culture a gender hierarchy was a fact in principle. However, conceptually hierarchy is not congruent with dichotomy. As Yvonne Hirdman has pointed out, it is pertinent to distinguish between the two. Historically, hierarchy and dichotomy-or to put it moderately, polarity- have been the two major principles or discursive strategies in constructing and legitimizing the unequal social position of men and women. The principle of hierarchy has assumed a different worth of men and women, whereas the principle of polarity has assumed a different and binary opposed nature of men and women (Hirdman 1988). The assumptions of gender hierarchy have drawn justification from tradition, from religion in particular, while the ideas of gender polarity have often presented themselves as rational, objective statements of the true essence of man and woman. It is useful to distinguish between the two discursive strategies as the ideological underpinnings of women’s oppression have been neither monolithic, nor unchanging in history: It seems the polarizing conceptions of gender, sexuality, and the body became distinctly prominent in Western culture from the seventeenth and eighteenth centuries onward (for example, Laqueur 1990; for this and subsequent discussion see also Jonas Liliequist, in this volume).
There was an element of gender hierarchy in preindustrial Finnish rural culture, but what about gender polarity? There was a certain polarity between man and woman in the division of space, for example. It was the man who was expected to go out in the world: hunting, fishing, peddling. In the main room of the peasant dwelling there was the men’s side and the women’s side. However, the man also worked at home and there was some considerable overlap in women’s and men’s spaces in the rural community. As Kirsi Saarikangas has argued, “[t]he agrarian oikos was a totality which consisted of parallel spheres for men and women and which in a certain sense was undifferentiated and indivisible” (Saarikangas 1993, 160). The segregation between the proper space of man and woman at home and in its vicinity was less clear-cut in the preindustrial rural milieu than, say, in the urban middle-class milieu after WW II (Pohjola-Vilkuna 1995, 83-89; Saarikangas 1993, 159-164, 341-370).
The division of labor was a field where gender polarity in preindustrial culture was clear in principle but flexible in practice. The pattern of dividing work into men’s and women’s labor was basically clear: sowing, tillage, hunting, and slaughter were men’s work; animal husbandry, cooking, laundry, and textile work were women’s work (Talve 1990, 198-200). However, whenever need arose women did almost any work. They had to do men’s work because of the husband’s absence or because there was often acute need for labor force in the fields at certain times of the year. Women who excelled in men’s duties and were brisk at work were admired (Lofstrom 1998). In fact, women’s work was often physically burdensome, thus it is easy to understand that the ideal woman in preindustrial rural culture was strong and sturdy rather than frail and delicate (Virtanen 1988, 113, 116).
The notions of sexuality and sexual desire are also one, and for the purposes of this paper a most crucial, territory where the categories of man and woman in preindustrial rural culture were substantially less polarized than in bourgeois culture and subsequently in urban middle-class culture. This is abundantly illustrated in the oral tradition of preindustrial rural culture collected at the Finnish Literature Society Folklore Archives in Helsinki. The material is particularly precious since a major part of it has been recorded not by academic folklorists but laypeople. Probably this explains why there is a good stock of uncensored sexual lore in the Folklore Archives (cf. Knuuttila 1992, 129).
In this folkloric material we can find many items where the theme of woman’s sexual subjectivity and sexual desire come forth. For example, there was a widely circulating myth of how God has given the woman a continuous estrus because she disturbed God while God was preoccupied “allocating” estrus periods to other created beings. Some folkloric notes witness the idea that also women ejaculate in orgasm; thus their climax is basically similar to men’s.9 According to a popular belief, the sex of the fetus depends on whether the man or the woman is more aroused during the intercourse. A large number of songs, jokes, and proverbs modulates the theme of a woman or girl who desires a man. Last but not least, there is an archaic tradition of lyric poems where the vagina appears as a merciless consumer of male genitals and an embodiment of woman’s sexual power which breaks the neck of the male organ and squeezes water from its eyes.
A major part of this folkloric material has been recounted and recorded by men, thus one can argue that it mainly tells us about men’s views of women. One could argue that for men to present women as sexually lustful was also a way to legitimize women’s sexual exploitation. However, the theme of woman’s sexual subjectivity can be discerned also in women’s own oral tradition, in lyric poems, and especially in magic spells by which girls would seek to enhance their sexual appeal (Stark 1995). As Kirsi Pohjola-Vilkuna has demonstrated in her study of sexuality-related cases in rural courts in Central Finland, in 1890-1910, the verbatim notes of the statements of involved men and women often witness of women’s sense of active sexual subjectivity; in particular in sexual relations between social equals the woman was also an agent who had wanted the sexual relation herself and who stated this also in the court. In night courting, too, it was not only the boys who visited the girls’ night quarters, but also vice versa (Pohjola-Vilkuna 1995, 101-103).
Moreover, even though some of the jokes and beliefs regarding women’s sexual desire were teasing, slanderous, or even implicitly oppressive of women, they nevertheless contributed to a discursive construction of women as sexual subjects with sexual desire, and it seems to me this was not a matter of labelling “bad” women only, as in the imagery of Madonna and Magdalen in the nineteenth-century West European bourgeois and middle-class culture. True, also in preindustrial Finnish rural culture the woman engaging in premarital sexual relations could be labelled as a whore, but it was not an irreversible label, nor was it self-evident that the local community subsequently would reject her (Virtanen 1990, 148-152). Records of rural courts from the turn of the century show that even if the woman was slandered as a whore, she could successfully sue the man for indemnity and the child’s maintenance (Pohjola-Vilkuna 1995, 55, 67-69).
Thus, the woman’s sexual subjectivity and sexual desire were recognized in the popular representations of woman and often apparently also in social practices in preindustrial rural culture. She was conceived of as a sexual being; consequently, a person’s capacity for sexual desire was not conceived of as a gender specific characteristic, for example, as something peculiar to men only. Here there was a difference from the paradigmatic turn-of-the-century German and English middle-class conception where the man often was the sole sexual subject and the proprietor of autonomous sexual desire, while true womanhood was equivalent to muted sexual desire and muted sexual expression (see also, Jonas Liliequist in this volume).
But how about Finnish bourgeois views of gender and sexuality? After all, most of the legislators, also in 1888, were from gentry. They were men who technically speaking belonged to nobility, clergy, or bourgeoisie, but more or less they all shared the same lifestyle whose constitutive aspect was a privileged access to civil service and cultural capital (Alapuro 1988, 25-29). Probably it is best described to non-Nordic readers as bourgeois lifestyle.
Women in the Finnish Bourgeois Discourses and in the Project of Nation-Building
A notion of an all-encompassing polarity between the man and the woman was spreading in bourgeoisie and in the rising new middle class also in Finland in the late nineteenth century. In the representations of gender the distinction between the man and the woman was all the more often assumed congruent with an array of binary oppositions like public vs. private, rational vs. emotional, active vs. passive, etc. (Haggman 1994, 182-195). As also in many other countries in Northern and Eastern Europe, there was a strong nationalist current in Finland; the Finnish Nation was being constructed. As the role of men and women in the project of nation-building was discussed, many upper- and middle-class men would emphasize women s maternal role as “mothers of the nation.” Also many of the upper- and middle-class women who were active in politics and in civic organizations would consider that precisely the issues of family, education, and health were the territory where they could best contribute to building up the nation (Jallinoja 1983, 63-69; Jallinoja 1984). This division of civic duties according to gender was confirmed in the fact that while, on the one hand, the legal reforms in civil law in the late nineteenth century declared the wife and the husband formally all the more equal in matters of inheritance and property, on the other hand the law would simultaneously all the more clearly posit that the wife only has “proper” interests and commitments within the realm of nuclear family (Pylkkanen 1994). A polarization between the public man and the private woman was being accentuated and extended in the doctrine of gender.
However, the shift toward a more extensively polarized notion of man and woman was slow and gradual, and one should not overstate the prominence of the idea of “the docile private woman” in late-nineteenth-century Finnish society. For example, it was only at the turn of the century that the Weberian modern ideal type of bureaucracy came to be adopted in Finland. Till that, the person’s role and obligations in public office were often conceived in terms of family relations and patriarchal reciprocities rather than formal impersonal relations. The “public” sector was partly “private”; thus, recruiting women as auxiliaries in public office, for example in post offices, was considered quite natural (Pohls 1994). Finland was still very much a society of orders where a person’s family ties were the crucial concern, but as class society began to develop and the importance of family ties began to fade away, individuals were more often allocated social roles on the basis of their personal characteristics rather than family connections. Hence also one’s gender became a matter of more crucial importance (Haggman 1994; Pohls 1994).
I would argue that gender political tensions were actually mild in Finnish society at the turn of the century, compared to England for example. The women’s rights organizations were started in the 1880s, but rather than a manifestation of “a war between the sexes” they were one part of the Finnish-nationalist mobilization of people in the project of nation- building in civic movements. The cause of the nation was to supersede gender-particularist interests; in fact, the Finnish women’s movement has ever since had a strong allegiance to the state and polity rather than gender politics per se (Jallinoja 1986). Yet, the women’s movement broke up along the lines of political parties based on class and language. One of the prominent women politicians, Alexandra Gripenberg, rebuffed the idea of women’s own party, urging “every woman find her party among the existing political parties” (quoted in Jallinoja 1986,162; see also Jallinoja 1983, 34-52). Many politically active women were inclined to regard the issues of family and child care as women’s most proper concern, but nevertheless, they urged that these questions are pertinent to the whole society and that they must be tackled in the public realm; hence women must gain access in politics and administration; they should not remain at home only (Jallinoja 1983; Ollila 1994).
Though the project of nation-building involved a gender-segregated allocation of social obligations, the “success” of this segregation must not be overstated. Women’s entry into higher academic education in the last decades of the nineteenth century apparently took place without problems; men academics did not regard women students as a political or a moral danger (Korppi-Tommola 1987). Men and women often came together within the same organizations; the field of civic organizations began to turn more gender segregated only in the 1900s (Sulkunen 1987). It is indicative that an English woman, travelling in Finland in 1894, told the readers of her travelogue: “there are no sexes in Finland” (quoted in Haapala 1993,79). A rigid gender segregation in women’s and men’s access into the public life was far from self-evident; this is most tellingly attested by the women’s franchise. In the parliamentary reform in 1906, the Finnish women achieved political civil rights at the same time as the majority of men. They were the third in the world, after women in Australia and in New Zealand, to achieve the franchise, and they were the first in the world to become eligible to stand for parliament. In the first elections for the new Diet, in 1907, nineteen out of the two hundred MPs were women. From the 1900s to the 1920s the number of women MPs varied between fourteen and twenty-five, which was 7.5 to 12.5 per cent of the total number of MPs.
Why did Finnish women achieve the franchise and eligibility so precociously? In part it may have been due to the precarious political situation of the country. The threat of Russification which became acute in the end of the 1890s was considered to necessitate a solid defense of all Finnish people, regardless of class, gender, and language; hence a willingness to mobilize women in the political struggle. However, I believe the historian Irma Sulkunen has hit the nail on the head in arguing that the women’s franchise must be set in the context of the contemporaries’ worldviews. As she has propounded: “The issues of an essential, specific man-ness and woman-ness and of the gender specificity of political rights were of completely secondary importance to common people at the time when the franchise was debated” (Sulkunen 1991, 72-73).
It was the common people who flooded the streets in Helsinki and put up a general strike in 1905, calling for political reforms and a general franchise. They were mainly urban workers but many of them had only recently come from the countryside. The core of the argument by Irma Sulkunen is that the general franchise was pushed through by those segments of society whose worldview was the least divided into binary opposed spheres of men and women. However, it is noteworthy that only few of the upper- and middle-class men legislators objected to the franchise reform either. Moreover, it is interesting that the arguments for and against women’s vote and eligibility in the Estates and in the lawdrafting bodies in 1906 were pragmatic; “strengths and weaknesses of female nature” were seldom invoked. The Committee on Parliamentary Reform, consisting of men only, simply stated: “Our experience of women participating in public affairs and holding public office in central administration and in municipalities gives no cause whatsoever to think they would use political rights less responsibly or less conscientiously than men” (quoted in Innala 1967, 65).
All in all, as the historian Mikko Perttila has put it: “The supporters [of women’s franchise] regarded the reform as a ‘nice’ thing but they did not see any particular social or gender-political values in it. Equally, their adversaries obviously were unable to see any particular social or gender- political dangers in the reform, as their Swedish and English colleagues did 5-15 years later” (Perttila 1984, 156).
It has often been pointed out that the modern notion of citizenship that burgeoned in the Western culture in the eighteenth century has been inherently gender segregated. It has allocated men and women citizens separate, binary opposed spheres where women have been confined within the private realm. However, at the turn of the century the modern notions of public, private, and citizenship, and, consequently, the essentializing notions of women’s and men’s thoroughly segregated social roles, were only making their way in Finnish society.
At this point the reader may want to protest that we are only looking at issues that relate to women’s political citizenship. What about the views of women’s sexual subjectivity in Finnish bourgeois world? Was there a polarity assumed between male and female sexual subjectivity? What kind of notion does the 1889 Penal Code imply in this respect?
Women’s Sexual Subjectivity in the Bourgeois Discourses and in the 1889 Penal Code
In the Finnish bourgeois discourses such as marriage and sexual advice literature in the end of the nineteenth century and at turn of the century we can discern a conception that the man and the woman are substantially different in the mode of their sexual desire and sexual subjectivity; the man is the active initiating subject; the woman is the passive, receptive object. The argument was not necessarily that women are asexual beings, but that their sexual desire is substantially less ardent than men’s desire (Rasanen 1995). This view of women vis-a-vis men was also implicitly advocated by bourgeois women’s organizations as they frequently inculcated that women are by nature more virtuous and pure than men; hence it was women—”the mothers of the nation”—who should encourage and serve the men as a model in self-control (Rajainen 1973; Rasanen 1995, 48-54). In this regard the discussion was treading the same path as the discourses of gender and sexuality in England, Germany, and the United States (for example, Mosse 1985).
It seems to me that this view of woman’s sexual subjectivity is echoed and translated into normative statements in some of the sections of the Penal Code that concern sex offenses. For example, the man’s penalty for sexual intercourse with a woman between 12 and 16 years of age and for rape depended on the woman’s sexual life history: The man’s penalty was more lenient if she “had been laid before or if she had indulged in public indecency,” that is, prostitution. One may argue this implied the message that a woman and a young girl had better guard their honor and be wary of manifestations of sexual subjectivity, lest the legal protection of their sexual integrity be diminished (Lofstrom 1991, 21-23). In the 1888 Estates some members of the Nobility and of the Burgesses also recommended that in incidents of premarital sexual relations only the man’s conduct should be punishable. It seems as if they were implicitly positing the man as the sexual subject and the woman as the sexual object, and it seems as if they wanted to place the responsibility on him, while she, by definition, was considered only a victim to the man’s seduction. This view of women falling prey to men’s compelling seduction had also been one, yet rather cautiously given, justification in a Government proposal to the effect of acquitting the woman of legal punishment for a premarital sexual relation in the 1863-1864 Estates.
However, the representatives in the 1888 Estates who supported the idea of letting the “fornicated” woman free actually did not mean to say that her responsibility was equal to nothing or that her sexual subjectivity was only subordinate to the man. They wanted to call attention to the fact that in practice it was only the mothers of illegitimate children who ever came to the bar for illicit sexuality, and they thought it was too harsh to penalize women who already were facing social distress. Despite their efforts, the 1889 Penal Code decreed a fine also for the woman sentenced for premarital sexual relations. As Professor Thiodolf Rein propounded to his fellow noblemen in the 1888 Estates: “One shows greater respect to woman by acknowledging she is responsible for her deeds in the like manner and to the same degree as a man.” In fact, the proposal of acquitting the woman of punishment in first time premarital sexual relations had been rejected in the 1863-1864 Estates with an argument very much similar in tone: “To deny that she is punishable on the grounds that she was only enticed into crime would be to deny her free will, while it naturally depends on her whether to allow herself to be enticed or not.” Of course, one could argue that these enunciations ignore the reality of women’s sexual oppression and that they were effectively reproducing it. However, I would emphasize that in these enunciations the legislators formally explicitly rejected an interpretation that women by definition can only be objects of male sexual subjects.
There are indications that at least to some of the legislators in the 1888 Estates women’s sexual subjectivity was not an alien idea. When the text of the Penal Code was discussed in the Estate of Nobility, Dr. Josef Pipping- skiold, a pioneer in Finnish gynaecology, urged that the sections concerning sex offenses against minors and mentally deficient must be formulated so that they also take account of the possibility of a woman offender. The majority of the Nobility voted for a reformulation of the sections to this effect. Similarly, in the lectures that Professor Jaakko Forsman gave on criminal law, in the 1890s, he reminded that in sex offenses against one’s foster child or pupil the subject can also be a woman. Moreover, he considered it pertinent to point out to his students that a case “where man is forced into sexual intercourse by woman” [sic] technically cannot be subsumed in the section which criminalizes rape as a violation of woman’s bodily integrity (Forsman 1899, 119, 626). As for the stigma that the woman’s overt sexual subjectivity might carry, Forsman conceded that in incidents where a woman of “loose morals” was sexually assaulted her status was a mitigating circumstance to the male aggressor, yet he inculcated that the woman’s reputation must not be relevant in judging whether the crime itself has taken place (Forsman 1899, 121-122). Whatever the legal practice, the leading authority of Finnish criminal law thus explicitly rejected the interpretation that by becoming a prostitute the woman has given a generic consent to sex with any prospective partner (cf. Clark 1987, 110-127).
In sum, in the sections of the Penal Code that concern sex offenses there are elements which imply a normative notion of women as sexual objects rather than sexual subjects. One may argue that the legal protection of women’s sexual integrity was extended by the resolution of the 1888 Estates, compared to what the Government Proposal had entailed. For example, the maximum penalty for sexual assault and procuration was raised and also an attempt to procure was decreed punishable; the age of consent for women was restored at seventeen years, contrary to the Government Proposal. In her study of gender and sexuality in Russia at the turn of the century, Laura Engelstein has pointed out that when women’s legal protection from sexual aggression was extended, at the same time the law would also more often deny them a recognition of competent subjectivity in sexual relations (Engelstein 1992, 92-94), for example, by way of pathologizing their actions. Perhaps such a denial of woman’s formally equal responsibility in sexual action was attempted in Finland in the 1888 Estates, as we have seen, but it came to nothing. The 1889 Penal Code acknowledged the woman’s potential for sexual subjectivity and autonomous sexual desire; the criminalization of women’s homosexuality is a testimony to this. That the criminalization took place undramatically implies the legislators had no particular qualms with the idea of woman’s autonomous sexual desire; without this idea the very possibility of women having sexual relations between themselves would not have been conceivable. How do these views of women’s sexuality relate to what has been said about views of women’s role in society?
The Denial of Women’s Homosexual Crime and the Denial of Women’s Public Role
As we have mentioned in the beginning of the paper, there were attempts to criminalize women’s homosexual acts in Germany and in England in the early decades of the twentieth century, but they came to nothing. Why were these attempts not successful? It has been suggested that in England this was due to the legislators’ reluctance to render the issue public; it was considered better to sustain silence, lest decent women hear about such a demeanor in the first place (Weeks 1989, 105-106). A criminalization would also have been an indirect, yet public, recognition of women’s capacity to autonomous sexual desire. As John Fout has propounded, with reference to the attempt of criminalization in Germany, “[it] might have given credence to the notion that women had sexual desires” (Fout 1992, 394). It would have been a slap in the face of the cherished bourgeois ideal of the sexually muted woman.
It was a legacy of the Prussian Penal Code of 1851 that women’s homosexual acts were ignored in the German Penal Code of 1871. Prior to 1851, the penal codes within the tradition of German criminal justice had usually criminalized also women’s homosexual acts, but these were omitted in the draft to a new penal code that the Prussian legislative bodies prepared in 1847. According to Gisela Bleibtreu-Ehrenberg, in the records there is no indication of any debate on this issue in the legislative bodies, and she has concluded that the omission of women was a lapsus that nobody actually noticed; a lapsus due to a confusion about the contents of the archaic term “fornication which is against nature.” The absence of any controversy whatsoever witnesses that the omission “cannot have been intentional” (Bleibtreu-Ehrenberg 1981, 312-314). However, I think it is plausible that it was an oversight only if the Prussian legislators’ view of sexuality already at that point was predicated on the assumption that women are so different from men that their sexual conduct ought to be differentially regulated in law. When the proponents of the decriminalization of homosexuality in the German Federal Republic in the 1950s called attention to the unequal and hence “unconstitutional” treatment of men and women in the Penal Code, the current legislation was defended with an argument that effectively suggested this: Women’s sexuality is different from men’s sexuality, that is, it is more muted; women as citizens are also within the realm of private; hence their potential homosexual relations pose no danger to society; hence it is not unconstitutional discrimination that women are omitted in criminal law whereas men are not (Moeller 1994, 410-417). Given this was also the Prussian legislators’ view in the 1840s, it becomes easier to see how women’s homosexuality may have been disregarded in the new penal code in such a taken-for-granted manner that it did not even trigger discussion. In fact, Thea Struchtemeier has made the point aptly, arguing that women’s homosexuality was omitted in the Prussian Penal Code of 1851 because at that time women were being “made ‘private”’ (Struchtemeier 1992, 4).
The issue of women’s emancipation was acute both in Germany and in England at the turn of the century, and as several historians have pointed out, women who challenged their confinement within the private and who claimed access to the public sphere and political rights were not infrequently labelled by men as unfeminine and potentially pathological. The women’s struggle for political rights fomented the men’s politically motivated fear of the purportedly all the more rampant manly lesbian (for example, Faderman 1981). It is true that though women’s homosexuality was omitted in the penal code in countries like Germany and England, it was simultaneously extensively discussed in medical terms by physicians and sexologists. However, in the medicalizing discourse the homosexual woman by definition was mentally deficient and thus predestined only to the private and the tutelary. In fact, a criminalization of her homosexual acts would have recognized her place in the public realm of legal regulation. As Laura Engelstein has demonstrated, the fact that woman in some respects was set outside criminal law entailed that she was also excluded from full-scale citizenship; “insofar as sexuality acted as a defining feature of female subjectivity under the law, the legal limits of women’s accountability for their own sexual choices also limited their recognition as autonomous civic agents” (Engelstein 1992, 75). A case in point is the omission of women’s homosexuality in criminal law and also the practice of administrative detention of prostitute women; in both cases she was treated as an immature ward rather than a citizen with legal responsibility and a right to stand at the bar (Engelstein 1992, 71-75, 92-94).
The policy of administrative detention of women prostitutes was not unknown in Finland either (Tuulasvaara-Kaleva 1990), but as for the woman indulging in homosexuality, she obtained a status of legal subject in the public realm of criminal law in 1888. It is true that women’s homosexuality was discussed in medical terms also in Finland; there was an extensive article on the issue in a medical journal in 1882. In fact, this was the only article on homosexuality in Finnish medical science till another article in 1919, also on women’s homosexuality (Lofstrom 1994,123-126; see also Antu Sorainen, in this volume). These articles notwithstanding, I would argue that a medicalizing approach to women’s homosexuality attracted only limited attention in Finland. As concerns the tendency of suspecting the womanhood of aspiring feminists, it is noteworthy that though some upper-class men would regard the women in women’s movement as rather mannish figures (Jallinoja 1984, 76-77), a connection between feminist endeavor and woman’s homosexuality was seldom forged in Finnish discourses. An exception is the Finnish informant who provided an account of a homosexual scene in Helsinki in Hirschfeld’s study in 1914; he purported that the sexual preference of many of the “masculine” women’s rights activists was obvious from a distance (Hirschfeld 1914, 539). Perhaps he was not completely wrong about there being love relations between many of the educated and politically active women (see Juvonen 1994). However, the informant apparently was a self-identified homosexual man with some knowledge of current theories of sexuality; thus his interpretation of the personality of “masculine” feminists is not self-evidently representative of contemporary views at large. Women’s emancipationist activity was entwined with occurrence of “abnormal and perverse thoughts and emotions” also in an article in a medical journal, in 1908 (Granholm 1908), but all in all, statements like these were rare.
Conclusion
The criminalization of women’s homosexuality in Finland in 1888 has to be interpreted against the background of prevailing notions of women’s social role and female sexuality, not only among bourgeoisie but also in rural culture which was the cultural framework for the majority of people in the nineteenth century, including part of the legislators. I argue that one reason why women’s homosexuality was criminalized without more ado lies in the relatively mild polarization between the man and the woman in the prevailing notions of gender. In the bourgeois doctrine of gender in England and in Germany it was assumed that there was an all-encompassing polarity between the categories of man and woman and that this was embodied in binary pairs such as public vs. private, rational vs. emotional, and, most importantly, sexual activity vs. sexual passivity. This doctrine was spreading itself also in Finnish society, yet it had not established itself extensively at the time when the Penal Code was passed, or, for that matter, when the 1906 political reform was carried out. Men and women were allocated different duties and obligations, but I suggest this segregation was likely to derive from traditionalist notions of gender hierarchy rather than essentialist notions of all-encompassing gender polarity.
When a legal sanction against homosexuality was sketched in the penal code proposals in the 1870s and 1880s, the jurists at first did not come to think of including women there. I suggest this was due to the tradition of legal practice in the Swedish era; only men had been pursued for “sin of Sodomy” (see Jonas Liliequist, in this volume). The old practice probably served as an easy guideline in drafting the sanction in the new penal code in a situation where the law-drafting jurists had to devote their time and energy to acute questions such as abolition of death penalty and total reform of the penal system. However, when the idea of criminalizing women’s homosexuality was put forth in 1888, the objections were surprisingly few and mild. This easiness witnesses that the step was not difficult for the legislators to take. I argue that the sanction against homosexuality was extended to women so easily because there was only a comparatively thin layer of polarizing presumptions about sexuality and gender in culture. In their potential for sexual subjectivity and autonomous sexual desire men and women were not considered radically different from each other; nor was there yet a rigid distinction between “the-man-in-the- public” and “the-woman-in-the-private.”
I argue that actually the criminalization of women’s homosexuality, in 1888, and the women’s precocious franchise, in 1906, parallel one another. Women were included in the section of the Penal Code that criminalized homosexuality because it was assumed they were not very different from men in their capacity for autonomous sexual desire and sexual subjectivity. Women were granted equal political rights in 1906 because it was assumed they would not fare worse than men in the public life of parliamentary work. Traditionalist notions of men’s and women’s different worth and gender hierarchy had become challenged, but a modern civil society and the modern notion of citizenship with their intrinsic gendered polarities were only in the making in Finland; also “the public” was only gradually becoming a modern “public.” In those circumstances women’s entry into politics did not generate deep gender political anxiety in men like it did for example in England, where the public vs. private distinction was more articulate and where the hegemonic “heterosexual imperative of desire belonging to men only” (Hart 1994, 8) also was less accommodating of the idea of women’s autonomous sexual desire.
The criminalization of women’s homosexuality might have been more strongly contested in Finland some decades later. As society evolved toward a modern civil society, it also became more pregnant with middle- class notions of gender polarity. The assumption of the segregated worlds of man and woman was spreading itself also in working class and among rural people (Markkola 1994; Ollila 1994; Sulkunen 1989). Perhaps it was symptomatic that in the 1888 Estates it was the Burgesses who wanted to omit women’s homosexuality in the Penal Code as if they felt uneasy about the attendant recognition of women’s autonomous sexual subjectivity, thus replicating the pattern of West European bourgeois discourses of female sexuality.
It would be most interesting to do a comparative study on the criminalization of women’s homosexuality in Finnish, Swedish, and Austrian criminal law. Here I can only suggest that the decision of the Swedish legislators in the 1864 Penal Code might be interpreted at least partly within the same framework as the Finnish case. Industrialization, with its attendant developments in social structure and gender relations, began in Sweden earlier than in Finland, yet in the late nineteenth century also Sweden lagged behind England and Germany in socioeconomic transition (Alestalo 1986, 26-27). As concerns the rural-agrarian element in society, it was relatively prominent also in Sweden, and it seems there was no strong all-pervasive polarization between the categories of man and woman in that cultural setting (Liliequist 1991, 419-423; see also Liliequist in this volume). As concerns Austria, the tradition of legal regulation of women’s homosexuality dated back to the Lex Carolina in the sixteenth century, and it continued in the penal codes in the eighteenth century (Bleibtreu-Ehrenberg 1981, 307-310). This tradition may at least partially explain the criminalization of women’s homosexuality in the Austrian Penal Code of 1852, though it is true that in 1851 a similar tradition of legal regulation came to an end in Prussia. More comparative research on this legislation is needed.