Is He a “Social Danger”?: The Franco Regime’s Judicial Prosecution of Homosexuality in Málaga under the Ley de Vagos y Maleantes

In February 1961 a man named Robert was indicted by the Juzgado de Instrucción Especial de Vagos y Maleantes (Special Court of Vagrants and Thugs) in Málaga for socially dangerous behavior. He testified that although “he was born homosexual, he had been dealing with his defect with as much dissimulation as possible.”¹ Robert’s lawyer argued that his homosexuality was not a social danger given his overall normative social behavior. This attention to the defendant’s integration in his social environment was a common theme in trials for homosexuality in Málaga. Although most of these trials ended in acquittals, the judge found that Robert was a social danger and should be subject to “security measures” because his sexual relations had included minors.² This article will investigate how state and social institutions, legal arguments about social danger and homosexuality, and the perceived relationship between accusations of homosexuality and other antisocial behaviors affected these trials and their judicial decisions.

According to Francisco Vázquez García and Richard Cleminson, the history of homosexuality under Franco’s regime remained a relatively unexplored field of research well into the current millennium. More recently, scholarship by Geoffroy Huard, Arturo Arnalte, Oscar Guasch, Alberto Mira Nouselles, Fernando Olmeda, Gema Pérez Sánchez, Lucas Jurado Marín, Raquel (Lucas) Platero, and Javier Ugarte Pérez, among others, indicates that there is an increasing academic interest in this topic. This article builds on these works and relies on original sources that have not been studied until now: the files of the Juzgado de Instrucción Especial de Vagos y Maleantes of Málaga, an Andalusian province located on the southeastern Mediterranean coast of Spain. These records can only be consulted under restricted conditions: with the implicated individuals’ explicit consent or when fifty years have passed from the closing date of the file, in which case private information is protected unless there is evidence of the defendant’s death.³ For this reason, the names used in this article are pseudonyms.

As Vázquez and Cleminson point out, these court proceedings are of particular relevance for a historical approach to the “construction of official and public attitudes toward homosexuality” during this period.⁴ These sources provide new insight into the relationship between Francoist state ideology and repressive practices while underlining the contrast between scientific sexual categories and everyday practice. Unlike previous accounts that have concentrated on analyzing legal text and commentaries, I will focus on the law’s application and on how the attitudes of social actors and government officials influenced court verdicts. This perspective is methodologically informed by the work of historians currently investigating how the harsh repression of the civil war and its aftermath gave way in subsequent decades to different political attitudes toward the regime, from active opposition to passive compliance and the “non-resistance of millions of Spaniards.”⁵ Ángela Cenarro and Oscar Rodríguez Barreira have urged other historians to draw on the insights of social and cultural history to explore how everyday forms of resistance confronted the influence of social networks of collaborators with state repression.⁶ This approach aims to understand how the Francoist regime was able to perpetuate itself by repressing opposition while achieving the compliance of a large sector of the population. Along these same lines, the revision of the antihomosexual law in the mid-1950s provides one example of how the regime’s complex balancing act between various economic, social, and religious influences accounts for its longevity. In the midst of trying to promote economic modernization and cope with its effects, the official discourse of National Catholicism allowed the regime to ambivalently distance itself from the totalitarian rhetoric that marked its first years in power and its alliance with Fascist Italy and Nazi Germany. It is in this intersection between a program of economic modernization and the endorsement of traditional Catholic morality that we have to situate these cases. An analysis of this one aspect of the...