Both Kertbeny and Ulrichs report that, upon deciding to retain the sodomy laws in the new unified North German legal code, the framers of the new code justified their decision with the conclusion: “While decriminalization can be justified from the standpoint of medicine and through some arguments taken from the theory of law, the legal consciousness of the folk judges these acts to be not merely a vice, but also a crime.”28 A century before the publication of Foucault’s Histoire de la sexualité, these bureaucrats knew very well that the institutions of law, medicine, religion, and the state were competing for the control of sexuality.
Karl Heinrich Ulrichs and the Urning
The future of the sodomy laws in the North German Confederation was on Ulrichs’s mind when he composed his two brochures in 1869. Ulrichs, who lived from 1825 to 1895, was extraordinarily committed to the rights of urnings and urningins, his words for men who sexually loved other men and women who sexually loved other women. He took the term “urning” from Pausanius’s speech in Plato’s Symposium, which claims Venus Urania is the goddess devoted to the masculine love of men. Ulrichs’s word for men who were sexually attracted to women was “dioning.”
A lawyer by training, Ulrichs began publishing a series of pamphlets in 1864 demanding that the rights of urnings be respected. He continued publishing until 1879—all twelve of the pamphlets were subsequently collected and published as Forschungen über das Räthsel der mannmännlichen Liebe (Studies on the Riddle of Male-Male Love).29 In these writings, Ulrichs unfolds a theory of sexual desire explaining same-sex attraction, a theory that he hopes will combat civic and religious prejudice against urnings. His publications became a clearinghouse for information about urning life throughout the world. He proposed such practical initiatives as a monthly journal devoted to urnings (Prometheus, of which only the first issue, called Uranus, appeared in 1870). On August 29, 1867, he went to a convention of German lawyers in Munich, revealed himself to be an “urning,” and publicly called upon his colleagues to denounce the Prussian anti-sodomy laws. Far ahead of his time, he was hooted out of the convention hall. His openness about his own identity as an urning caused him difficulties. The Freies Deutsches Hochstift in Frankfurt, a prestigious liberal cultural institution, refused to admit him, saying that the organization had rules concerning the admission of men and women, but no provisions for people of other sexes.30 More concrete and specific charges concerning sexual activities were probably behind his resignation from his job as a civil servant in 1854.31 The same allegations probably prevented him from being named mayor of the German town of Uslar in 1865.32 Ultimately, he gave up on Germany and, like so many bourgeois northern European homosexual men, moved to Italy, where he died impoverished and forgotten by most, although Krafft-Ebing occasionally exchanged letters with him and Symonds even visited him.
Ulrichs’s 1869 texts both focus on the Zastrow case. In January of 1869, Carl Friedrich Wilhelm Ernst von Zastrow (1821–1877), a lieutenant in the Prussian army, was accused of anally raping and brutally murdering a five-year-old boy named Emil Hanke.33 The crime was so notorious that the verb zastrieren briefly came to mean “to rape homosexually” (rhyming with the German word for “castrate,” it could be rendered as something like “to zastrate”). An outraged public demanded vengeance against this Zastrow, as well as all other “Zastrows.” Zastrow denied having committed the crime and could prove he had been on the other side of town a half an hour before the crime was committed. Citing Ulrichs, he insisted in his defense that he was an “urning”—a man sexually attracted to other men—and that the mob misinterpreted his sexual nature to think he was sexually attracted to children. Despite his claims of innocence, the court convicted Zastrow. The prosecutors proved he could have gotten across town to the scene of the crime within thirty minutes and located a number of Zastrow’s personal effects near the corpse.34
Ulrichs, who had coined the term “urning” a few years before, wrote two lengthy pamphlets about Zastrow in 1869, one called Incubus and the other called Argonauticus, boldly defending the legal rights of the accused and carefully delineating the argument that urnings were not murderous pederasts, indeed not pederasts at all. As Kennedy explains, whatever Ulrichs thought about Zastrow’s innocence, he was sure that the man had not received a fair trial. Ulrichs’s willingness to take on the challenge of defending the rights of someone accused of such an atrocious crime is especially remarkable. Not that he was condoning the rape and murder of children, of course—he was at least initially convinced of Zastrow’s innocence. When Zastrow was ultimately convicted and sentenced to fifteen years in prison, Ulrichs was willing to abandon him, suggesting that if Zastrow had committed these atrocities, he couldn’t be an urning. With his liberal instincts, Ulrichs knew how important it was to fight against the lynching mentality of the mob; with his legal training, he had the tools to lead such a fight.
The core of Ulrichs’s argument was his insistence that the populace misunderstood urnings and thus was willing to blame an urning like Zastrow for any horrendous crime. At the beginning of Incubus, Ulrichs defines urnings as “men who as a result of their inborn nature feel drawn by the force of sexual love exclusively to male individuals.” An urning’s body is that of a man, but “his erotic drive is that of a female being.”35 Ulrichs confirmed Zastrow’s suspicions that he was an urning. Ulrichs noticed, for instance, that the newspapers reported that Zastrow had “a shadowy, catlike appearance,” which Ulrichs concluded was nothing other than his innate femininity. Like a girl—Ulrichs argued—Zastrow had religious tendencies and enjoyed spiritual music.36 These generalizations about gender were an important part of Ulrichs’s defense of Zastrow, because he argued that the delicate tender feminine nature of an urning made it practically impossible for him to commit violent atrocities.
Ulrichs underscores Zastrow’s own argument that, as a member of the “third sex,” he is attracted to men, as a woman would be, not to prepubescent youths.37 Ulrichs’s claim that the feminine sexual desire of an urning is natural and innate allows him to argue the basic injustice of suppressing an integral part of one’s desire: “Lifelong suppression of the erotic drive cannot be demanded of anyone.”38 At the same time, he approvingly cites a newspaper editorial that supported his arguments on the sodomy laws with the liberal observation that “one must have the right to control one’s own body.”39 From these rights arguments, he draws a series of practical conclusions: an accused urning deserves to be protected from the irrational rage of the mob and the police should not be keeping lists of otherwise innocent urnings.40 He is more than willing to work with allies in the Catholic Church, such as the priest in Mainz who agrees that urning love as described by Ulrichs cannot be a sin.41 His belief in the possibilities of a religious acceptance of urnings goes so far that he enthusiastically reports on two urnings in Moscow, both Protestants, who had married each other: “They had thereby created on their own a sanctioning form for the urning love bond, which urnings miss so deeply.”42 Ulrichs concludes Argonauticus with a list of additional activities that he proposes: he wants to establish a legal defense fund for urnings in legal trouble, he hopes to organize a boycott of Germany should the North German Confederation recriminalize sodomy, and he would like to further the development of urning community by introducing urnings to their “circles” from Hamburg to Munich.43
Ulrichs was consistently involved with leftist politics and civic affairs. He tried to get a job working for the Frankfurt National Assembly, which was founded after the 1848 revolution. In 1867, he spent January 25 to March 20 and April 24 to July 5 in prison, “because of anti-Prussian agitation in the press and in the societies.”44 Ulrichs spent years attempting to receive legal redress for his incarceration in 1867; he also wanted back the books and papers, especially those