The Americas 58.3 (2002) 419-441
[Access article in PDF]
Silencing The Unmentionable:
Non-reproductive Sex And The Creation Of A Civilized Argentina, 1860-1900*
In 1886 the Argentine Congress adopted a new penal code for the country which replaced the existing, and often contradictory, maze of colonial laws and local bandos--ad hoc decrees--that had hitherto regulated criminal procedure. Although it is worth examining the provisions of the Código Penal as a fruitful indication of nineteenth-century legal development that witnessed an increasing centralization of power by the Argentine state, scholars have completely ignored one momentous omission in the code. As it quickly becomes apparent after perusing its pages, the new penal code had no provision regulating consensual sodomy, a practice that until then had been severely punished and was considered second in gravity only to heresy and treason. 1 Indeed, the utter silence concerning consensual sodomy in the code effectively decriminalized it. Sodomy shifted from a crime punishable by death to a lawful activity between consenting adults in private. This sudden legal change raises a variety of questions that bear on the process of Argentine state formation and illuminate the connection between sexuality and nation building.
This decriminalization of adult sodomy and the accompanying silence regarding homosexual desire in official government discourse can be attributed to a multi-causal process. On the one hand, the increasing concentration [End Page 419] of police resources on crimes against property and the social order, led to a decline of prosecutions against sodomy in the late Colonial period which set the groundwork for the decriminalization that occurred in the national era. After independence, new philosophical ideas concerning crime and public life not only upheld the lack of prosecutions against sodomy, but also served to gradually remove the topic of homosexuality from official government discourse. This factor, coupled with the government's novel focus on a civilizing project based on the promotion of European immigration and heterosexual reproductivity, altered the way officials thought about sodomy. The meaning of sodomy shifted to reflect fears of pederasty in the form of devious men who could corrupt Argentine children and thus endanger the nation's future. In a constant struggle to shape Argentina into a nation worthy of the world stage--especially a Europe-centered one--governmental fears concerning the public disclosure of homosexual activity if it were prosecuted led to the decriminalization of consensual sodomy. Rather than evincing a permissive attitude towards sexuality, this decriminalization signaled a desire to silence the practice of sodomy by preventing its public awareness through disclosure in the courts. 2 [End Page 420]
It should be noted that the 'silence' regarding the practice of consensual sodomy manifested itself in the legal profession and official government circles. Perhaps the best way to conceptualize this silence is to apply Twinam's framework of honor in terms of the public realm. As she astutely expressed in Public Lives, Private Secrets: Gender, Honor, Sexuality and Illegitimacy in Colonial Spanish America, honor is a process determined and negotiated in the public sphere. 3 In essence, while acts such as sodomy might be taking place behind closed doors, these actions only become dishonorable when they are made public. This paper will explore how legislators and legal professionals centered their concern regarding sodomy on the dishonor and scandal that would ensue if it were made public through its prosecution. Decriminalization thus ensured the removal of sodomy from discussion in official public forums.
This 'silence' however, need not imply that people were not aware of sodomy. One of the interesting aspects of the medical literature regarding homosexuality that appeared in the early twentieth century is that the subject cases provide glimpses of the public awareness of homosexual activity. For example, in his "Patologia de inversiones sexuales," José Ingenieros explored various sexual 'deviances' including homosexual inversion. His detailed relation of the life of an inverted named 'Aida' includes references to his 'marriage' to another man, in what Ingenieros termed "a scandalous ostentation to make public an existing concubinage." 4 Likewise when referring...