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Article 248bis - Homosexuality And Criminal Law: An Exhibition And A Book

by Gert Hekma in Films & Books , 28 december 2011

Dit artikel is ook in het Nederlands beschikbaar

On Friday the 18th of November at 5 p.m. the exhibition “Bewaar me voor de waanzin van het recht” (Save Me From the Insanity of the Law) will be opened in the IHLIA center in the Public Library Amsterdam. Simultaneously the book with the same title on the history of homosexuality and criminal law will be presented. These events commemorate the fact that 200 years ago sodomy was scrapped from criminal law, as well as the fact that 100 years ago a new article 248bis was added again, criminalizing sexual relations between adults and minors of the same sex.

Sodomy consisted of all so-called unnatural sexual relations, like anal sex between men, or between a man and a woman, as well as bestiality, basically any sexual contact that was not solely focused on reproduction. In the eighteenth century two hundred people in Holland were found guilty of committing sodomy and were sentenced to death and indeed executed.

In another six hundred cases people were jailed or banished from their hometown. Most of these cases were about men having anal sex. So it was an enormous change when The Netherlands became part of the French empire under Napoleon and these acts – as long as they remained private – ceased to be punishable.

From 1811 till 1886 people could only be prosecuted for rape or for sex in public. In 1886 new legislation introduced articles on pornography and ages of consent – sex between adults and youngsters under sixteen was outlawed.

In 1911 the age of consent for gays was raised to twenty-one while for straights it remained sixteen. In 1971, now forty years ago, article 248bis was scrapped again.

The Catholic Minister of Justice E.R.H. Regout, who was responsible for the creation of art. 248bis

This article has caused a lot of misery: around 5000 men and fifty women were taken to court and over half of them were convicted. Many others were busted by the police but never made it to court because of a lack of evidence. The article also inspired positive action however: in 1912 a few men founded the first organization for gay rights, the “Nederlandsch Wetenschappelijk Humanitair Komitee” (NWHK) (Dutch Scientific Humanitarian Committee), with J.A. Schorer at the wheel from the beginning until the start of the German occupation in 1940. The idea behind article 248bis was that young people could be seduced into becoming homosexual. The Christian parties especially, wanted to prevent this.
There were other new decency laws against prostitution, pornography, abortion and prophylactics. In these times of emerging compartmentalization the Christian leaders wanted to take a moral stand against the liberals, who were more open-minded when it came to sexuality and who had been in power before 1900. The front men of the NWHK were convinced however, that people could not be seduced into homosexuality but that sexual attraction was congenital and natural.

From the fifties psychiatrists started to realize that indeed, young people could not be seduced into homosexuality. Along with the sexual revolution, which cleared up a lot of prejudices in general, the article lost its legitimacy and was scrapped in 1971 without much ado. People realized it was important for gay youth between sixteen and twenty-one to have access to a gay culture.

Before 1971 they could not even go to the COC, which strictly stuck to the age regulations out of fear of the authorities. In a way it’s like the situation we know today: youngsters realize they’re GLBT but have to wait till their sixteenth until they can go to the COC, explore bars or parties, or even certain sites on internet; until then they’re confined to the generally straight environments of family, school and sports club.

Willem de Merode with two former students, about 1915

The article affected a lot of prominent people, who are put in the spotlight at the exhibition and in the book, like the poets P.C. Boutens, Willem de Mérode, Hans Lodeizen and Jan Hanlo, high official L.A. Ries, scholars like A.G. van Hamel, Ed Brongersma and Piet Meertens. Both book and exhibition offer an overview of the rise and decline of articles in criminal law concerning homosexuality and the far reaching effects it had on gays and straights.

The illustrated book has been compiled and edited by Gert Hekma and Theo van der Meer for AMB and will be available at the exhibition and in selected bookshops.

On Friday the 11th of November Theo van der Meer will speak on the introduction of article 248bis and on Friday the 9th of December Joke Swiebel will pay attention to the end of it. Both lectures will be held in the Haasse-Vestdijk room of the Public Library and start at 6 p.m. The events are organized by the Mosse Foundation and the IHLIA (International Gay and Lesbian Information Center and Archive).
The Public Library of Amsterdam (OBA) is at 143 Oosterdokskade, 1011 DL Amsterdam. The exhibition is on the sixth floor.

The exposition will be open till Saturday 14th January 2012

Jhr. Jacob Schorer (right) with unknown young man, both dressed in a Roman tunic, about 1905



In the New Issue of Gay News, 323, July 2018

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