Silencing the Unmentionable: Non-Reproductive Sex and the Creation of a Civilized Argentina, 1860-1900

Abstract

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 localbandos—ad hoc decrees—that had hitherto regulated criminal procedure. Although it is worth examining the provisions of theCódigo Penalas 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. 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.

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