Good golly, Miss Molly!
Would it shock you to learn that homosexuality was not illegal in the 18th century? How about if you learned there was a vibrant gay culture during this time? Now that I've shocked you to your toes, let's get to know what exactly was illegal.
This research section only scratches the surface, but it's an important section to include given the preferences of Patrick March, Viscount Kissinger, in The Heir and The Enchantress. The first point I'll make is that if you really want to dig deeper into this subject, far beyond what my little scratching of the surface has provided (which isn't much, eh?), then check out historian Rictor Norton. He is the go-to on this subject and has devoted his career to studying the historical, cultural, and literary presence of gay culture and homosexuality in and around the Georgian era.
A perfect place to begin this brief exploration so that we can get on the same page with terminology is etymology. The term "homosexual" does not appear until 1892. The term "gay" as it relates to sexuality does not appear until the 1960s. While "sodomite" was the primary term used (outside of slang, such as "molly"), its distinguishing characteristic is that it references a specific act rather than an identity, and thus marks the distinction in legality and culture. This difference between an act and an identity is important because it was in the 18th century that the shift occurred where sexuality became part of ones identity rather than an act performed. This source describes it well:
"The act of sodomy, on which homosexuality was predicated, changed from something one did, to something one was."
In homage of this shift, I'll be using our more modern words in this research post since they encompass culture and identity. It is in using these words that we differentiate what was legal from what was not legal, and what was accepted and what was not accepted.
The literary documents of the time, such as novels, journals, letters, court cases, magistrate documentation, newspapers, plays, sculptures, and art, offer us the best perspectives of what was happening and what society's views were on the topic. This recently discovered journal by Yorkshire farmer Matthew Tomlinson from 1810 gives food for thought of society’s views, namely that it was acknowledged as a God-created nature. Tomlinson challenges the harshest of punishments for sodomy in his journal.
"It must seem strange indeed that God Almighty should make a being with such a nature, or such a defect in nature; and at the same time make a decree that if that being whom he had formed, should at any time follow the dictates of that Nature, with which he was formed, he should be punished with death."
The evidence of a developing culture begins in the 17th century, but not in the abundance we see in the 18th. Samuel Pepys, for instance, in the 17th century, remarks on how commonplace it was to meet a gentleman who preferred the sterner sex. The late 17th century saw a rise in not just journal entries on the subject, but other mediums, such as entire plays devoted to homosexuality, newspaper articles on the raids of male brothels, sculptures and drawings showing same-sex affection, letters between lovers or letters referencing gentlemen pubs, and more. As a brief aside, know that my references to homosexuality are not exclusive to men, but it's important to realize that male sexuality was far better documented than that of female sexuality. There are references, certainly, to both genders being part of the shift from act to identity, and thus culture, but the references are not as prevalent and certainly not part of the legal documentation. Lesbianism was in no form illegal, so when we discuss the semantics of the sodomy law, realize there was nothing illegal about lesbianism.
You might still be up in arms about my opening question regarding legality. Bear with me here for the legality is partially to do with semantics and all to do with the shift from act to identity. One great place to learn what was legal, what was not legal, what prosecutions occurred, what verdicts were dealt, etc. is via the Old Bailey. Now, here we go! Brace yourself. Homosexuality was not illegal. Note the word I've used. Homosexuality. You could, to your heart's content, be as open about your sexuality as you so desired, especially if you were an aristocrat. What was illegal was sodomy. Is there a difference? Arguably YES.
The law was only against sodomy (no matter what gender... a man and his wife might be tried for sodomy, after all). As defined by the law, sodomy meant anal sex, oral sex, and bestiality. To be found guilty of sodomy, there must be two eyewitnesses who could prove both penetration and ejaculation. Let that sink in for a moment.
Impossible? No; just look at the case of Captain Rigby, which involved a complicated sting operation.
The penalty if tried and convicted was most likely standing in the pillory for a day or so, perhaps imprisonment for a year or so, maybe transportation, less likely hanging--not to make light of any of these sentences, but don't assume that being tried and convicted meant hanging. A person was more likely to be hanged for thievery than sodomy. There were several lesser variations of the sodomy law, including sodomitical assault, which typically ended with a fine if found guilty. The law was used more for blackmail than anything, not unlike accusations of witchcraft. The blackmail was the most troubling aspect as it gave power to gangs and groups of thieves, such as highwaymen: "Report my crime, and my friends and I will accuse you of sodomy." Not too difficult to produce multiple eyewitnesses and so-called evidence when dealing with a den of thieves--troubling indeed. Self-identified homosexuals weren't typically the ones being blackmailed, rather victims who found themselves in the wrong place at the wrong time.
The sodomy law became notorious as not a law that persecuted homosexuals, but as a blackmail threat, especially to pub frequenters. Outside of blackmail, those on the lookout for sodomites were almost (I add this qualifier, but as far as I can tell, it really was only this group) exclusively members of the Societies for the Reformation of Manners. Interestingly, much of the documentation we have on the gay culture of the 18th century comes from that group, for their desire to bring more awareness to sodomite sins and showcase their victories brought attention to what many outside of London and even those outside of the subculture in London did not know about, turning this (inadvertently) into a known and talked about topic.
The Reformation of Manners focused their attention on the middle and labor classes, avoiding aristocracy. There is ample documentation via letters, journals, newspapers, and literature of aristocrats who were openly bisexual or homosexual. Take Baron Hervey as a great example since his affairs were bold, open, and indiscreet, including public romances with the Earl of Ilchester and the Prince of Wales. While there are numerous sources to link about Baron Hervey, I choose this one because it also links to a plethora of additional sources. While we won't get into the different subsets of the gay culture during the 18th century, I will add briefly that there is evidence of subcultures within the larger cultural construct, just as we might expect there to be. A fellow, for instance, might parade his romances but not partake in the London Molly Houses. In terms of who was a target by the reformation society, we can nod to the existence of subsets. Frequenters of a male brothel could be a target but an earl likely would not be, for instance. The arrest records for accused sodomites show, notably, tradesmen and artisans, not aristocrats or the elite (imagine the person who tried to arrest a friend/lover of the Prince of Wales, eh? I don't know about you, but if I were a member of the Reformation of Manners, I wouldn't risk it.). The society's active periods best show when the culture was at a peak of public openness/awareness: the early 1710s, within the 1750s, and then again in the 1770s.
The shift that occurred between act and identity transitioned from a mentality of sexual act to sexual identity. There was also a fresh view on romantic love versus sexual love. Herein lies the difference between sodomy being illegal (although nigh impossible to convict) and homosexuality not being illegal. A homosexual is not synonymous with a sodomite (I'll leave that for you to unpack), nor a sodomite synonymous with a homosexual, as much as it might seem at first glance, and thus open homosexuality did not put one at jeopardy for being tried for sodomy, and certainly not if one was a social or political elite. The likelihood of being accused as a sodomite could be higher if one flaunted their preferences since it could draw the attention of the reformation society, but not probably.
Here's an interesting bit of trivia regarding identity over act: it was not uncommon (notably at the White Swan and at Mother Clap's Molly House) for there to be ordained ministers at the gentlemen pubs who would marry (yes, marry) two gentlemen wishing to be united in holy matrimony. One could argue that this was satirical (and certainly if/when it took place at a brothel), but the point is that the clergyman officiating the ceremony was, in fact, an ordained minister. Would this union be legally recognized by the Crown? Nope. But the union was ordained by a representative of the Anglican church, nevertheless. It's something interesting to mull over, specifically in relation to act (sodomy) vs identity (homosexuality).
Molly Houses or Molly Clubs--meeting establishments for those identifying as homosexual--prospered during the 18th century. What first began as quasi speakeasies grew into well-established clubs. While some were male brothels, most Molly Houses were more akin to a gentleman's club, not unlike the popular coffeehouses, offering a place where one would go to be understood and to be among friends to enjoy conversation, drinks, coffee, newspapers, etc. Every house/club had its own vibe, and there were even some with unique specializations, such as crossdressing (men and women--yes, even women). (Speaking of 18th century crossdressers, have a search for John Cooper, aka Princess Seraphina.) These were the locations most prevalent to raids by the Societies for the Reformation of Manners, in hopes of catching couples in the act for that oh-so-tricky sodomy conviction, but raids were few and far between, and even fewer amounted to anything (although there are some fairly epic raid accounts documented, such as Mother Clap's Molly House). This source is far from being scholarly, but it's still a fun and quick peruse.
The span of the 1760s and 1770s was the zenith of not just open sexuality but of male effeminacy. The most desired rake would be (nearly) indistinguishable from the most flamboyant homosexual, as effeminacy in behavior, dress, and mannerism was popular. These were the decades of the fops and macaronis, an era of the most fashionable gents and the predecessors to Beau Brummel (let's save Brummel's sexual appetite for another convo).
Let's be clear that not all persons who engaged in risqué behavior with a member of the same sex identified themselves as being homosexual. Recognition and acceptance of this as an identity rather than a sexual act developed in the 18th century, as we've discussed, but there were variations of this identity: situational homosexuality, bisexuality, homo-Platonic, heteroromantic, etc; for example, a person finding romantic love with someone of the same sex but sexual love with the opposite or vice versa. Sexuality wasn't the only consideration, for gender needs to enter this conversation, as well. Transgenderism is not modern. Check out Chevalier d'Eon--soldier, spy, and diplomat--as an example of a transgendered person living openly with that identity in the 18th century. This is an interesting source to explore, although it's certainly not short! As acknowledgement of all things homosexual (especially mentions and caricatures of Molly Houses and associated behaviors and events in newspapers) spread, so did awareness. Those who might have remained quiet at an earlier time were emboldened. The height of the culture, social acceptance, and even pride ran from mid-18th century to early-19th century. It was a culture that gained traction in the early-18th century, but the most widely open and socially accepted era spanned nearly a century between the 18th and the 19th.
1828 was the beginning of a proud culture going underground. The sodomy law changed under the Offenses Against the Person Act, or the Lord Lansdowne Act, which repealed the evidence needed to prove sodomy (the offenses act was not focused on that law, as it repealed, consolidated, and reformed a great many laws, including those regarding abuse and assault, but within it, the sodomy evidence changed). It was the Victorian era that ultimately staunched not just culture but social acceptance and pride. This is becoming a trend for me to point a finger at the Victorians, but yet again, it was the Victorians who much altered the views of sexuality and heteronormalcy. Homosexuality shifted from being an accepted culture and identity to one of persecution.
If we put this into perspective of characters in historical fiction, their openness would much depend on their family's views and even their own personal perceptions of their sexuality. An aristocrat or social elite would not be concerned with the legalities of sodomy (especially if he avoided the male brothels) nor would he be ostracized for his preferences, but he would regardless have familial duties of not just loyalty to his family but loyalty to his line, namely if he were the heir apparent or presumptive. There was sexual preference, and then there was duty. Even the most fabulous of fellows would more than likely take a bride, despite being open or private about his preferences. What we would not expect to see is public behavior such as two men (or two women) holding hands or kissing in the park--a gentleman would not even do that with a lady, after all!
For the purposes of both accuracy and societal reflection, it is most likely that a novel set in the 18th century, namely from the mid-18th century (1750s) to the early-19th century (1810s), would have openly homosexual characters. If a writer wanted to present some conflict with that, then including a salacious brothel or Molly House would be a great choice. By the end of the Regency era, we're less likely to meet an openly homosexual character, and once we reach the Victorian era, anyone not fitting with the heteronormalcy dictate would be living their private life behind closed doors, although it would be entirely appropriate for a writer to include a Wilde-inspired character, just be aware of the external conflicts inherent in doing so.
Now, there's something to be said for if a writer wants to include diversity, which goes for not just sexuality but also ethnicity and disability. Choosing to do so (or not to do so) depends on the era in which they write, how they wish to represent the era, their research into the era, their recognition of what their readership will know/accept about the era (accuracy isn't always perceived as being accurate by some readers), their religious and political perspectives, their target audience, and their interpretation of what is or is not accurate, and even their desire to capture accuracy ("fantasy" historical is exceedingly popular, after all (and can be argued as being more accurate than those that claim to be accurate, but that's a conversation for another time!)).
Within my currently published novels, we do see a presence of homosexuality, even if gay culture is not represented. We also see different takes on homosexuality in The Duke, The Heir, and Dash. In The Duke, our hero's father was open about his sexuality, although he still saw to the duty of his line. Our hero, however, appears to view effeminacy as negative and worries his father's reputation will affect his own. That view likely stems from his mother's experiences as the spurned wife. Interestingly, we can assume he does not view homosexuality negatively, even jesting about the topic with his cousin, rather he views the idea of himself as effeminate as the troublesome point. While being accepting of others, he does not wish to be mistaken for anything but a lady's man--an internal conflict created by his mother rather than a reflection of society's views of sexuality. In Dash, our hero makes reference to another fellow as a frequenter of the Molly House, not as a negative or as a positive, but rather as a recognition of a lifestyle and identity that would influence the gentleman's choices. The hero does not pass judgement, but he does acknowledge the existence of the culture and sees sexuality as an identity rather than an act (homosexuality vs sodomy). In The Heir, our hero's friend identifies himself as homosexual, but we never do know how open the gentleman is about his sexuality. We assume he keeps it private, for there is small talk between him and the hero about his disclosing his preferences to his parents, something he never does. Just how open he is remains to be seen, although we do know he discloses it to our heroine's friend--a way to deter her flirting? A way to strike a deal with a desperate gentlewoman? A way to fulfill his duty to family and line but with qualifications? I'll leave that for you to decide!