Sexual Morality and The Law - Introduction

Introduction

Foucault and Hocquenghem focus, in the first place, on the penalization of the "sexual offences", at the time of the 19th century, and on the invention by the then incipient Psychiatry of the category of the "perverts".

Foucault points out that the French Penal Code of 1810 comprises 485 articles defining crimes, offenses, and misdemeanors as well as the resulting punishments. It was promulgated on February 12, 1810, and did not regulate the sexual behaviors, "as if sexuality was not the business of the law". He explains that legislation on sexuality during the 19th century and specially in the 20th century, at the time of Pétain and of the "Mirguet amendment" (1960). The Mirguet amendment of July 18, 1960, increased the penalties for "public insult against decency" between same sex couples. It has changed article 38 of the 1958 French constitution.

Foucault, Hocquenghem and Danet denounce the increasing psychiatrization of society and the introduction of a social control over sexuality. Foucault had already outlined this analysis of what he calls the "device of sexuality" in his work The Will to Knowledge (1976). "All the legislation on sexuality", affirms Foucault, "introduced since the 19th century in France, is a set of laws on decency", which appears impossible to define, becoming thus a flexible tool politically used in several local tactics. Foucault stressed that:

"What is emerging is a new penal system, a new legislative system whose function is not so much to punish offenses against these general laws concerning decency, as to protect populations and parts of populations regarded as particularly vulnerable" (for example children). "Therefore, there would be on one side the fragile population, and on the other side the "dangerous population" " (the adult in general).

Danet affirms that "what takes place with the intervention of psychiatrists in court is a manipulation of the children's consent, a manipulation of their words".

Using among other things the example of the movement of protest, in Germany, at the end of the 19th century, against article 175 of the German Penal Code which criminalized any homosexual act, Danet considers that the psychiatrists "expected only one thing from the abolition of this law, namely, to be able to take over the 'perverts' " "for themselves and to treat them with all the knowledge that they claimed to have acquired since around 1860" (Danet cites then Morel and his Treaty of degenerescence, published in 1857).