Das Delikt der Fornikation und dessen Bestrafung Das Habsburgerreich und Salzburg in der Frühen Neuzeit. Beiträge zur Rechtsgeschichte Österreichs|Beiträge zur Rechtsgeschichte Österreichs Band 1 / 2019|

Résumé 0

The crime of fornication, which was directed against all sexual activities outside marriage, can first be found in the Constitutio Criminalis Theresiana of 1767/68. It applied to all Crown Lands of the Habsburg Empire and provided for severe penalties. The Josephine Criminal Law of 1787 eradicated in an enlightened way offences such as premarital sex, anal intercourse or masturbation, while adultery could only be punished as an offence upon complaint. In the Archbishopric of Salzburg there was no criminal law codification until the end of the Old Empire, which is why the Peinliche Halsgerichtsordnung of Charles V of 1532 remained subsidiary and was supplemented by penal ordinances. In addition to criminal laws, police legislation also played a decisive role in sanctioning sexual offences. Among other things, the article attempts to trace the gap between legal norm, everyday behaviour of the population and judicial action. The most frequent court cases of prohibited sexual practices concerned unwanted pregnancies or births. While in cases of simple fornication only a relatively small fine was imposed, the sanctions for third-time offenders or for adultery were much more severe. This led to different evasion strategies on the part of those affected. The evaluation of procedural files of the Salzburg Hofrat showed that men are primarily sentenced to public humiliation or fines for their qualified sexual offences, while women are often sentenced to long prison sentences and labour penalties.