Hans-Peter Weingand:
"... daß dieses Laster mehr eine Religions Sache seye".
Hans-Peter Weingand:
"... that this vice be more a religious matter."
Homosexual Acts and Criminal Law in Austria, 1781–1852
English abstract
With the 1787 implementation of the "General Legal Code on Crimes and their Punishments", the offense of "Unchastity against Nature, or Sodomite Sin", which had been potentially punishable by death, now became an offence to be punished by civil officials with a month’s imprisonment. Through sources now analyzed for the first time, the contemporary discussions between the participating jurists, beginning in 1781 and including the involvement of the Emperor Joseph II (1741–1790), can now be traced. At the time, proposals by prominent jurists for the decriminalization of consensual sexual activities between members of the same sex could not win majority support. The positions of the jurists ranged from leaving the offense within the religious realm to adopting arguments from the Enlightenment – which assumed that same-sex activities led to a weakening of health and thus had an indirectly negative effect on the state too. The dominant assumption that penetrative sex was necessary for committing this offense led to draft proposals limiting it to men, but then the concrete laws passed in 1787, 1796, 1803 and 1852 ultimately reaffirmed the universal ban on same-sex contacts. Beginning in 1803, the offense once again became a criminal felony, potentially punishable with a year’s incarceration. In 1852, the sentencing limit was increased to five years, remaining in effect until decriminalization in 1971.