Justinian, Charlemagne, and St. Louis had insisted on the
sin and sacrilege of sodomy as the ground for its punishment.[269] It was
doubtless largely as a religious offense that the _Code Napoleon_ omitted
to punish it. The French law makes a clear and logical distinction between
crime on the one hand, vice and irreligion on the other, only concerning
itself with the former. Homosexual practices in private, between two
consenting adult parties, whether men or women, are absolutely unpunished
by the _Code Napoleon_ and by French law of today. Only under three
conditions does the homosexual act come under the cognizance of the law
as a crime: (1) when there is _outrage public a la pudeur_,--i.e., when
the act is performed in public or with a possibility of witnesses; (2)
when there is violence or absence of consent, in whatever degree the act
may have been consummated; (3) when one of the parties is under age, or
unable to give valid consent; in some cases it appears possible to apply
Article 334 of the penal code, directed against habitual excitation to
debauch of young persons of either sex under the age of 21.
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