Homofobia y ley penal: la homosexualidad como paradigma de peligrosidad social en el Derecho penal español (1933-1995)

Abstract

The Ley de Vagos y Maleantes (1933) constitutes the first systematic treatment of social dangerousness in Spanish law. It remained in force until 1970, when it was replaced by the Ley de Peligrosidad y Rehabilitacion Social, which remained in force until 1995. Thus, the concept of social dangerousness and its consequences, the safety measures, were legally and positively recognized in three politically incompatible regimes: the Republic, the Franco dictatorship and constitutional democracy. Beyond the differences of the successive normative frameworks, homosexuality was considered a paradigm of dangerousness, and as such was defined, labeled and excluded. Each political model contributed with its own ideological argument, but the common result was - if it isn’t still- the exclusion of a collective whose only dangerousness lay in the fact of understanding sexual autonomy in a different way from the hegemonic stereotypes in each case. The mechanisms of discipline and control were dressed up in legal-criminal clothing, but the definition of their nuclear assumption- dangerousness - and the implementation of the sanctioning system - safety measures - were always based on principles that were incompatible with those that characterize democratic criminal law.