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In most historical periods, same-sex sexual activity has left few traces. By contrast, verbal sanctions that regulated or sought to regulate homoeroticism have often survived in writing. For the pre-modern period, sexual prohibitions therefore provide one of the main sources for our knowledge of sexual cultures in the past.

The earliest known prohibitions on same-sex sexual activity arose from societies in the Near East with little separation between a legal and a religious sphere: the Zoroastrian ''Code Against the Devas,'' the Book of Leviticus, St. Paul's New Testament letters, and the Koran. Such passages, taken from specific contexts, are far from unequivocal.

Reiterations of older laws or commentaries sometimes invested precedents with clear-cut meanings they had originally lacked. Genesis 19, God's wrath over Sodom's sinfulness, emerged as the locus classicus to advocate for penal severity with regard to male-male sex acts. Justinian's law code of 528/542 elaborated on the tale of Sodom's destruction by positing a causal link between same-sex sexual acts and natural disasters such as epidemics or earthquakes.

Lack of prohibitions against same-sex sexual activity does not necessarily indicate freedom of sexual expression, however. In ancient Greece sex was a question of ethics, not a matter of regulation by the law. Certain sexual acts, though, were sanctioned. Athenian law of the fourth century BCE, for instance, prohibited men who had prostituted themselves from addressing the civic assembly.

The explicit condemnation and severe penalization of male-male sex that emerged in Christianity resulted from the confluence of various intellectual, social, and religious forces over a long period of time. Christian theology viewed sexual sins as emblematic of humans' fallen state, transgressions all humans were prone to commit.

During the first millennium CE, surveillance of same-sex sexual activities lay mainly within the realm of church discipline. The so-called penitentials, pioneered in Irish monasticism and issued from the sixth to the eleventh centuries, were tools of church discipline that listed the appropriate public penance for all types of offenses, sexual transgressions prominent among them. Tariffs for male-male sex acts varied from text to text (women were rarely mentioned in this context); factors such as age and the type of sex act committed (masturbation, intercrural, oral, anal sex, and so forth) affected how many years a sinner had to do penance.

Nonetheless, before the eleventh century, same-sex sexuality was of relatively little concern to Christian theologians or authorities. This was to change with the emergence of ecclesiastical reform and of scholasticism. The alarmist rhetoric about the dangers of sodomy, a term fleshed out in this time period, set the stage for more proactive measures. In an attempt to systematize religious knowledge, St. Thomas Aquinas, for instance, lumped several, if not all, nonprocreative sex acts together as the sodomitical vice. At least by intent, scholastic definitions encompassed sexual acts among women, though these implications were rarely spelled out.

Gratian's Decretum (c. 1140), canon law's foundational textbook, showed little interest in sodomy, however. Sodomy was censored as extramarital intercourse. Several twelfth-century synods demand that those who practice sodomy should be excommunicated. Analyses of records from church courts indicate, however, that sodomy cases, including those among the clergy, rarely came to court. The enforcement of prohibitions on sodomitical sex in court or in confession, the so-called forum internum, was caught up in a dialectic of silencing and speaking. The Summae confessorum, manuals for priests, and catechetical texts testify to anxieties among theologians that any mention of this sin ran the risk of instigating the same behavior.

From the twelfth century, laws penalizing malemale intercourse started to appear in secular legislation across Europe. The fact that lawmakers and rulers took an interest in such activities therefore marks a significant turning point in the history of sexual repression. In the reign of Baldwin II, King of Jerusalem, the Council of Nablus, a gathering of royal officials and clerics, stipulated that sodomites be burnt at the stake. Twelfth-century Norwegian law included a provision condemning two men convicted of sex to permanent outlaw status. Some thirteenth-century French and Spanish law codes also included relevant sanctions. They drew on a variety of sources, biblical, canon law, as well as Roman law while merging them with customary law. Only rarely, legal stipulations also targeted women offenders (e.g., Li Livres di jostice et de plet, c. 1270, or the German Constitutio Criminalis Carolina of 1532). In the high and late Middle Ages, secular authorities across Europe meted out penalties against so-called sodomites or heretics, though overall levels of enforcement probably remained low, especially for women.

While persecution of so-called sodomites was most stringent in secular urban courts, sodomy was a delictum mixti fori throughout the later Middle Ages. Penalizing offenders lay within the competence of both church and state jurisdictions--legal authorities that often competed and rarely teamed up together. Nonetheless, it would be erroneous to posit two distinct legal spheres for the later Middle Ages or the early modern period. Ecclesiastical concerns and secular persecution interpenetrated one another.

The deregulation of legislation on sex between men has rarely been scrutinized. In the eighteenth century, legal practitioners and reformers initiated a period of milder punishments. Enlightenment writers called for rescinding a crime the French National Assembly called an ''imaginary crime'' in 1791. Legal reforms and abolition of legislative measures often were coextensive with continuing repression of these same acts, though, on moral grounds.

Unlike Europe, the rest of the world did not witness the rise of a repressive mentality and measures with regard to sex acts between men or between women. Few if any regulations are recorded for medieval China or premodern Japan--cultures whose social and military elites adopted fashionable homoerotic codes. Yet during colonialism European powers also exported their conceptual apparatus across the world. Entering into a dialogue with European modernity therefore increased the pressure to conform with European legal standards. In Iran and elsewhere, this development resulted in public campaigns against erotic cultures described as homosexual and viewed as unmodern.

Michel Foucault's insight that the category of ''sexuality'' is not neutral has further enriched the discussion over how to approach the production, dissemination, and reach of sexual norms. Discourses are themselves regulatory in character: the word sodomy is an extreme case in point. It is a concept whose very essence conjures up a horizon of significations which condemn homoeroticism as a fundamental threat to society.

References:

Brundage, James A. 1987. Law, Sex, and Christian Society in Medieval Europe. Chicago: University of Chicago Press.

Goodich, Michael. 1976. ''Sodomy in Ecclesiastical Law and Theory.'' Journal of Homosexuality 1: 427-434.

Goodich, Michael. 1976. ''Sodomy in Medieval Secular Law.'' Journal of Homosexuality 1: 295-302.

Greenberg, David F. 1988. The Construction of Homosexuality. Chicago: University of Chicago Press.

Payer, Pierre J. 1984. Sex and the Penitentials: The Development of a Sexual Code, 550-1150. Toronto: University of Toronto Press.

Puff, Helmut. 2003. Sodomy in Reformation Germany and Switzerland, 1400-1600. Chicago: University of Chicago Press.

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