While the human needs for food, water and shelter can easily be met, the craving for sex is never fully satisfied. Even St. Augustine, who saw the sex urge as divine punishment for Adam and Eve's original sin and regarded the genitalia as satanic monsters, knew that he was helpless in the face of desire. "Grant me chastity," he begged God, "but not yet." In many ways, the history of civilization is a chronicle of our attempts to domesticate the chaotic urge for sexual fulfillment.
Since the beginning of recorded history, lawmakers have tried to set limits on how people take their sexual pleasures, and they have doled out a range of controls and punishments to enforce them -- from the slow impalement of unfaithful wives in Mesopotamia to the sterilization of masturbators in the United States. Anyone, no matter how highly placed, who engages in sexual conduct that is out of sync with prevailing attitudes risks being demonized and steamrolled by the legal system. Indeed, the intense pleasure we experience seeing powerful people brought down by their libidos is itself a fetish, one that demands a constant stream of scandals to be gratified.
Given that sex and power politics often intersect, the history of sex law illuminates many of today's hot-button issues. For example, as gay marriage lurches though the courts and statehouses, it's helpful to know that loving and committed unions between men were sanctioned by Christian and secular law alike many centuries ago.
The cast of my new book Sex and Punishment [Counterpoint, $26.00] includes kings, royal mistresses, priests, gay charioteers, medieval transvestites, lonely goat-lovers, prostitutes, and London rent boys. Each of them had forbidden sex, each was judged, and justice rarely had much to do with it. The book tells the human story, from the bedroom and backroom to the courtroom, and ultimately to the soul itself.
1. In sex law, context is everything.
The sex drive's "raging frenzy," to use Plato's phrase, has always defied control. However, that's not to say that every civilization has not tried. At any point in history, some forms of sex were condoned while others were punished mercilessly. Jump back or forward a century or two, or cross a border, and the harmless pleasure of one society becomes the gravest crime in another.
Take a 1956 case from Northern Rhodesia (now Zambia), where a terrified woman awoke to find her husband kissing her breast. A local tribunal of elders accused the husband of sorcery and took measures to protect the wife from him. The tribunal was not concerned with morality as such. Rather, sex was seen as a force moving heaven and earth, and sequestering the wife shielded everyone from divine retribution. British colonial officials thought such concerns were ridiculous and threw the case out.
The wife's complaint fell outside the 1950s Western model of a sex claim. But had the couple been students at any number of present-day U.S. colleges, her claim would have been enthusiastically received. Gettysburg College's 2006 student handbook, for example, stated that a man wishing to "initiate" sex with a sleeping woman must wake her up, make sure her judgment is clear, and then ask (for example), "May I kiss your breast?" Not doing so brought the risk of expulsion and arrest.
Nineteenth century Southern courts held that any sexual encounter between a white woman and a black man had to be forcible because no white woman "would consent to his lustful embraces."At the same time, white men were permitted to rape black females because such women had neither rights to their bodies nor the ability to testify in court against whites.
Sex has remained constant throughout the ages. What changes are the methods people use to exert control over one another's bodies, and the reasons they give for using them.
2. Sex has always been on the minds of lawmakers.
The earliest written laws, dating back to ancient Mesopotamia, were consumed with sex, covering the full gamut of sexual behavior, from intercourse with oxen, pigs and horses to the rape of slaves. Sex was also used as a punishment. In Assyria, the father of a rape victim was permitted to take the rapist's wife as a slave and violate her as much as he wished. In Egypt, men who destroyed stone property markers were required to give up their wives and daughters to be raped by donkeys.
More than anything, early sex laws focused on preventing women from committing adultery, although married women's lovers were rarely punished. The first death penalty law on record mandated that married women who seduced other men were to be killed, while their paramours were to be let off scott-free. Even when a married woman was taken by force, the suspicion usually fell on her, rather than the rapist. Ancient Hittite laws held that women who are raped at home were to be put to death, apparently on the theory that they must have invited the man into the house.
While the sex lives of wives were closely managed, prostitution was legal and often part of official religious observance. The wildly different standards applied to married women and prostitutes demanded that bright lines be drawn to make clear which women were for rent. From the earliest times, married women went veiled, while the faces of prostitutes were on perpetual display. Prostitutes caught wearing veils had hot pitch poured on their heads.
3. Blood and the first taboos.
To early man, blood was life itself, magical and dangerous to lose -- yet women bled freely every month with no injury and no one knew why. The one clear fact was that menstrual blood came from women only, and from the same place where human life began. The first sexual prohibitions were likely Paleolithic taboos against intercourse during women's periods. The appearance of menstrual blood reminded men that, despite their superior physical strength they were helpless to generate life on their own. Most likely, the rejection of women while their blood flowed was meant to appease the ever-threatening divine presence and impose order onto the chaos of sex and reproduction.
As time passed, men's fear of women often evolved into outright hostility, to the effect that menstruating women were regarded as equal parts dangerous and filthy. To ancient Hindus, menstruation gave rise to a zero-sum game: Sex with women during their periods was thought to sap the "strength, the might and the vitality" of men, while avoiding sexual relations with menstruating women was believed to add to men's wisdom and vitality. In Babylon, everything a woman touched during her period, from furniture to people, was considered contaminated.
No one took this fear further into the realm of obsession than the Hebrews. Under the Torah, if a man "lies" with a woman during her period and later sleeps on another bed, then that bed becomes unclean. Later Jewish law pronounced women "unclean" for about half the month, requiring women to take ritual baths and test themselves for blood with rags before having sex.
Over the centuries, menstrual blood found its way into aphrodisiacs. In fifteenth-century Venice, a lower-class girl used a mixture of her own menstrual blood, a rooster heart, wine, and flour to make a young aristocratic man "insane" with love for her. It worked too well. She was put to death. As late as 1878, The British Medical Journal ran extensive correspondence on the question of whether or not a ham could turn rancid at the touch of a menstruating woman.
4. Homosexual sex was ignored by the law until the Hebrews forbade it.
Before the Torah put male-male sex on a par with murder and warned that God would "vomit out" the Jewish people from their land for condoning it, the law paid no attention to homosexuality. (The word was not even coined until the late 19th century.) Sex between men interrupted no bloodlines and caused no more disruption than relations with slaves or prostitutes. Rather, the law focused on what role men played when they had sex with each other. To be the active, penetrating partner was to embody male qualities--powerful, principled, in charge. The partner in the passive, receptive role be female, even the person had make genitalia.
This distinction had huge consequences, since nothing could be worse for a man than to be labeled "female." For example, a freeborn adult male in ancient Athens who played the passive sexual role was barred from public life. And a man who caught another man with his wife could take his revenge by publicly ramming foreign objects, such as spiky scorpion fish and large radishes, into his rival's anus. The idea was to degrade the lover by making him take on the "womanly" characteristic of being penetrated. The Romans took this one step further, allowing a cuckolded husband to rape his rival outright. Such sex did nothing to harm the husband's reputation, but the wife's seducer was forever ruined.
It was not until the fourth century AD, when Christian doctrine began to influence Roman law, that all forms of male-male sex was outlawed in Rome. Even then, however, people had a hard time accepting these new rules. When a beloved chariot racer was arrested in Thessalonica for having sex with men, the local population rioted in the streets and slaughtered the city's entire garrison of soldiers.
5. When lawmakers view sex as bad, they write bad sex laws.
The main ideas of Christianity came into being when the followers of Jesus Christ were an outlaw cult, and while the religion's founders truly believed that Judgment Day was just around the corner. Such earthly trivialities as marriage and children were distractions from the urgent spiritual business at hand. To St. Augustine, sexual desire was the devil's revenge for Adam and Eve's original sin, and sex was to be avoided altogether. St. Jerome said that "Everything [is] poison which bears within it the seeds of sexual desire."
So when the religious ideas of these body-hating ascetics become the foundation of Western law, only mischief could result. Homosexuality became a major crime in Rome just after the Emperor Constantine adopted Christianity. When the empire collapsed and the church rose in prominence, a 1,500-year lockdown on sex ensued. Throughout the Middle Ages, priests instructed married couples to avoid sex during the first three days of marriage as well as Sundays, Wednesdays, Fridays, Saturdays, and during hundreds of holy days, not to mention during a woman's pregnancy, lactation, or menstruation. At best, that left about four days per month. Even then, pleasure was to be avoided. At the same time, and despite the official rhetoric against sexual desire, churches went into the prostitution business. The goal, of course, was revenue, but that alone was not enough of a justification. "Prostitution in the towns is like the cesspool in the palace," offered St. Thomas Aquinas. "Take away the cesspool and the palace will become an unclean place." With that, the business took off. Strasbourg prostitutes, called "swallows," worked in the city's bell tower. In Florence, the pious city fathers set up an official brothel in 1403, with the express goal of getting young men interested in females and avoiding the "filthiness of the horrible crime which is the vice of sodomy."
6. Early courts treated rape like parking tickets.
The law has never been kind toward rape victims. To the extent that rape was forbidden, the penalties depended on the rank of the woman involved. Low-class girls were worth practically nothing, while females of rank were worth more. And even when rape was proven (never an easy feat), the woman was at risk. A French court fined a man after his victim proved that he took her virginity by force. After she left the courtroom, the judge told him to find her and retrieve the money by any means necessary. This time, she resisted so tenaciously that he returned to court empty-handed. The judge then called the woman back and ordered her to return the money. Had she fought for her virginity as hard as she did for the money, the judge said, the rape would not have happened.
Rape has also been treated as a mating ritual. The Bible orders that when a man "seizes" a virgin and "lies with her," then "she shall be his wife." And in Renaissance Venice, a rapist was given the choice of going to jail for six months, paying a fine or marrying his victim. The man chose marriage.
When rape resulted in pregnancies, courts usually concluded that the sex was consensual. The idea was that both people needed to experience pleasure to conceive a child, so a pregnancy showed that the woman enjoyed the encounter. This theory has not gone away. In 1995, North Carolina legislator Henry Aldridge, when arguing aiding pregnant rape victims, said: "The facts show that people who are raped... the juices don't flow... and they don't get pregnant."
Only recently has it become illegal for a man to rape his wife. As late as the 1950s, the right of a husband to force himself on his wife was enshrined in every state's laws. When a woman said "I do," she was deemed to have given lifetime consent to her husband's sexual demands.
7. The first pornography prosecutions were for images on Vatican walls.
Pornographic images and words have always been around, but authorities only tried to forbid them once the invention of the printing press made them widely available to the lower classes. The first known pornography prosecutions were pushed by the Vatican in 1564, after sixteen of its hardcore pictures were reproduced as engravings for mass circulation in 1564. The engraver was thrown in a dungeon. Church authorities thought they had destroyed all of the engravings, but soon more emerged, this time accompanied by filthy sonnets composed by the irrepressible Pietro Aretino. In short order, the collection, known as "Aretino's Postures," was reprinted everywhere in Europe. The more the book was forbidden, the better it sold and the more imitators it spawned. From that point on, pornography was ubiquitous and governments were unable to stop it.
Not that they didn't try. Arentino's collection was put on the Vatican's first list of forbidden books (along with works by Martin Luther, Johannes Kepler, and Niccolò Machiavelli), but that only increased its allure. Soon Italian phrasebooks for English tourists included entries teaching people how to ask the works of Aretino, and in 1675, two Oxford dons were caught using the university's presses to print copies the "Postures" to meet local demand.
Since there was little law on the subject, English courts did almost nothing to stop the porn trade until 1724, when judges ruled that a dirty book can be banned when it "tends to disturb the civil order of society." Notably, the pornographer in that case, Edmund Curll, had popular support. After he was put in the pillory, his followers took him to a local tavern to get drunk. Not long after Curll died, the most infamous book of pornography ever, "Fanny Hill," was published. The book would not escape censorship in America until 1966.
8. Women without men.
Perhaps because the Bible ignores same-sex female relations, or maybe because men cannot women could experience sexual pleasure without them, lesbian relations have been given inconsistent treatment by the law. It was mostly ignored until the Renaissance, when courts started to punish women who dressed like men and used "artificial instruments" with each other.
The last lesbian execution in Europe was of Catharina Linck, burned at the stake in 1721 for living as a man with her young wife, Catharina Mühlhahn. By this time, Linck had already assumed nine separate male identities, including an itinerant preacher and a soldier in three armies. Linck had grown up in an orphanage, and left it dressed as a male "in order to lead a life of chastity," but her life was anything but that. During her travels, she bedded unsuspecting women with a leather phallus which she held in place with a strap. The credulous Mühlhahn thought she had married a man, but her mother was suspicious and denounced Linck to the authorities. The ersatz genitals were the critical evidence against Linck.
In 1811, after two co-mistresses of a tony Scottish girls' boarding school were accused of "improper" conduct with each other, the school went out of business and the women sued their accuser for libel. They won their case. Even though they admitted sleeping together with raised "shifts," there was no evidence that either of them had played the "male" role sexually. The court stated that without a phallus of some kind, nothing more than "licentious buffoonery" could result. The judge also refused to believe that respectable women could ever love each other sexually. Dark skinned women may go for that sort of thing, the judge opined, but never two white schoolmarms. "I have no more suspicion [of them] than I have of my own wife."
9. The hazards of masturbation.
Starting in the late 18th century, quack science began to replace religion as the justification for sexual repression. Witness the masturbation scare which lasted for about 150 years. It started with a Swiss doctor named Samuel Tissot, who published L'Onanisme, a blockbuster that characterized masturbation as a form of slow suicide. Tissot blamed the world's oldest pastime for an irretrievable loss of semen, that "essential oil of the animal liquids," the depletion of which brought madness, illness, and death.
Nowhere was the masturbation scare as frenzied as in Germany. Those boys who could not be frightened into stopping were sometimes put into mental hospitals or even infibulated--that is, their foreskins were tied shut over the heads of their penises and held fast with iron rings. Later devices, used everywhere, were no less crude. Right up to World War I, the U.S. government granted patents for contraptions that restrained, electrically shocked, and pierced penises with the temerity to become erect, even during sleep. It is unclear whether anyone was actually deterred. Judging by the high consumption of pornography, it appears that males everywhere were wasting their fluids in volume. American doctors later sterilized mental patients who were plagued by the urge to masturbate. Between 1893 and 1898, doctors at a Kansas mental asylum severed the testicles of forty-four masturbating male inmates and performed hysterectomies on fourteen self-abusing females. Castration was also used against black men, whom white lawmakers feared more than any group. No less a mainstream voice than the Yale Law Journal joined in, arguing that sexual assaults by blacks were a "daily terror" to Southern women and caused "uneasiness" to their "Northern sisters." The YLJ also advocated castration for "imbeciles," "paupers," and feebleminded" children, whom it called "the progeny of a worthless stock."
10. Legalized prostitution and the war on women.
Quack medicine also drove the "regulation" of prostitution in 19th century Europe. The objective was stemming the spread of STD's, but official misogyny turned the effort into a war on women. After many of Napoleon's soldiers returned home infected with syphilis, France established the first national registry of prostitutes. All females suspected of prostitution--including girls as young as ten--were required to register themselves and submit to periodic medical exams. The problem was that the inspections were savage and the treatments ineffective. The filthy, intrusive metal instruments used by police doctors resulted in the transmission of a variety of harmful infections. And men were spared the indignity of involvement in a system that publicized their sexual habits.
The French system was broadly copied throughout Europe, as was the corruption that inevitably follows such schemes. The bribing of police, doctors, and judges was commonplace. Police protected well-paying brothel keepers and came down hard on freelance streetwalkers. Townspeople also made secret accusations against neighbors they disliked, resulting in police dragging the accused women through the streets for inspections and then taking money to keep the women off the lists. Nowhere was the system as blatantly misogynistic as in Vienna. Many there held to the "scientific" view that females were inherently irrational and helpless in the face of carnal desires. Police policy stated that nearly every unmarried woman with a sex life was potentially an "occasional" whore. Police estimated that there were about 40,000 such women. However, only about 2,000 were on the list. To find the others, police used agents provocateurs to flirt with women in the streets. If the women responded with interest, they were arrested, jailed and put on the list. Additionally, anyone with a bone to pick with neighbors was invited to make accusations, which happened to one girl who, neighbors said went out wearing "striking" clothes.
11. Grown men and young girls.
Few crimes are as stomach-turning as sex between men and underage girls. Just ask Roman Polanski, who has been running from California's statutory rape law for decades. Yet had he had sex with a 13-year-old a century earlier, when California's age of consent for sex was twelve and Delaware's seven (!), he would have had no legal trouble. Even after California's age of consent was raised to fourteen in 1889, judges rarely imposed jail time on men and the girls were often branded more as temptresses than victims.
In England, where many men believed that sex with virgins cured venereal disease and aristocrats viewed underclass girls as their birthright, four out of five child rape cases ended in acquittal. Repeated efforts by early feminists to raise the age of consent were rebuffed in Parliament. In 1885, however, the riots sparked by a muckraking journalist's publicity stunt moved lawmakers to raise the age to sixteen. Mr. W.T. Stead arranged for the kidnapping of "Lilly," a young girl, after which he had her drugged, terrorized by a dirty old man (himself) and then shipped as a "white slave," purportedly, to the fleshpots of France. Stead's crazed articles about the affair (which omitted his involvement) set off such outrage that Parliament passed a raft of new child sex laws. After police learned of Stead's role in Lilly's abduction, he became one of the first men jailed under the new laws.
The age-of-consent issue was also at the center of a major legal case in late 19th century India, then an English colony, where a courageous "Hindoo" girl refused to submit to a marriage forced on her as a child. The case, which was followed closely in England, resulted in the Indian age of consent being raised from ten to twelve. Grumbled one English jurist: "The real mistake was educating [the girl] so as to make her unfit company for her husband."