The Boundaries of Desire: A Century of Good Sex, Bad Laws, and Changing Identities

Copyright © 2015 Eric Berkowitz

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LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Berkowitz, Eric.

The Boundaries of Desire: Bad Laws, Good Sex, and Changing Identities / Eric Berkowitz.

pages cm

1.Sex—Social aspects. 2.Sex customs—History.I. Title.

HQ21.B547 2015

306.7—dc23

2015005123

COUNTERPOINT

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e-book ISBN 978-1-61902-646-9

AS ALWAYS, FOR JENNIFER

CONTENTS

Introduction

CHAPTER 1

Family and Marriage: If You Can’t Rape Your Wife, Who Can You Rape?

CHAPTER 2

Homosexuality: From Sin to Sickness

CHAPTER 3

Dangerous to Minors: Sex and Children

CHAPTER 4

Vampires at Noon: Obscenity and Its Uses

CHAPTER 5

The Limits of Consent: Rape and Sexual Harassment

CHAPTER 6

Harmful Victims: Prostitution and Sex Trafficking

CHAPTER 7

Mongrels and Myths: Sex across the Color Lines

Conclusion

Acknowledgments

Bibliography

Endnotes

Index

INTRODUCTION

Some aspects of existence, such as the speed of light, don’t change. Others, such as our bodies, are in continual transformation. Still others remain constant but are subject to ever-changing perceptions. Sex falls into this last category. The act of reproduction and all its variants have been practiced in roughly the same ways since the beginning, but our views about the meaning and consequences of sex are in perpetual flux. Those beliefs determine the way we judge and punish the sex of others.

Lawmakers have always set boundaries on how people take their sexual pleasures. At any given point in time, everywhere, some forms of sex have been encouraged while others have been punished without mercy. Today’s sacred truths often become tomorrow’s hateful prejudices, and vice versa. Jump forward or backward a few decades, cross a border, or traverse social classes and the harmless fun of one culture becomes the gravest crime in another. Because the sexual urge burns at the intersection of existence, identity, and power, it has always carried outsize significance. Whom we make love to, how we do it, and why are among the law’s central concerns. The personal is political was a common feminist refrain in the 1960s and 1970s. Sex—the quintessentially personal activity—has always been political.

Over the past hundred-plus years, nearly every aspect of Western sexual morality has been turned on its head. With the expansion of women’s rights and gay rights, the decriminalization of birth control and abortion, and effective treatments for most venereal infections, sex is now less risky for more people than ever before. In many ways, the law in the US and much of Europe has kept pace with these changes. No longer are adultery, fornication, or homosexuality treated as crimes, and while those who have sex with people of a different race still face social stigma, they cannot be driven from their homes or put in jail. Even within the home, the rules have transformed. Men recently lost the right to rape their wives and broad domestic violence laws have given women and children unprecedented protection from sexual aggression in the very place where it happens most often. At the same time, sexually oriented reading or viewing material—whether health information, explicit pornography, or auto-parts advertisements featuring under clad women—are omnipresent, and controls on their dissemination have never been more easily circumvented.

Yet none of this has gone down easily, and as the twenty-first century finds its stride, Western society is still struggling to digest the post–Second World War sexual revolution. The compulsion to control the sex lives of others remains as powerful as the yearning for sex itself, and with each unfastening of sexual restrictions have come other, sometimes fearsome restraints. While sex can be more safely pursued now than in previous centuries, and a rewarding sex life has become an essential condition for personal fulfillment, the age-old dread of sexual desire—as destructive of both the individual soul and the well-being of society—has not diminished. Sex is always something we can’t control—we have to defend against it. . . . Why? Because sex is really penetrating inside everyone. This quote comes from a scholar explaining the strict separation of sexes among Orthodox Jews, but it also captures an enduring principle of secular sex law. At both the left and right ends of the political spectrum, the view persists that sex is uncontrollable and dangerous.

Sexual transgressions are seen as harmful both to the victims and, by extension, to everyone else. One’s activities in the outside world can draw mixed opinions, but those who have forbidden sex often find they have no allies. That is why charges of sexual misbehavior are so commonly used to neutralize enemies and troublemakers. The black boxing champion Jack Johnson’s victories over white opponents caused riots, but sex trafficking charges drove him out of the US in 1913. Martin Luther King Jr. was one of the FBI’s main political targets, but when the bureau failed to link him to criminal or communist conspiracies, it turned to sex: in 1964, with evidence of King’s rather unremarkable adulterous affairs in hand, the FBI wrote to him threatening to expose his evil, filthy, psychotic, animal, and hideous orgies. Telling King he was now finished, the letter counseled suicide: King, there is only one thing left for you to do. You know what it is. In 2010, Julian Assange became a hero to some and a villain to many others when his WikiLeaks website published reams of classified US documents. However, it was not his political subversion that forced him to take refuge in the Ecuadoran embassy in London—it was the risk of extradition to Sweden on the thinnest possible sex-crime charges.

The sex smear has become a reflexive device to discredit people, even the long dead. In 2013, during a bone-dry conference discussion on the government-deficit theories of the British economist John Maynard Keynes (1883–1946), Harvard historian Niall Ferguson—no fan of Keynesian economics—dismissed Keynes as a childless gay man who couldn’t satisfy his wife and who had no concern for the impact of his theories on posterity. (This charge had already been a staple of conservative academic thought for decades.) Economics is indeed a dismal science, but when it gets too dreary, even highbrow academics are not above a little gay bashing. Nor are liberals. Take the oft-repeated canard about FBI director J. Edgar Hoover prancing around a New York hotel suite in a frilly dress, high heels, and a wig. The story, as homophobic as any coming from conservatives, is relished by the left—even by those who know better. New York Times columnist Frank Rich, for example, admitted that [t]here is no solid proof of the delicious rumors about Hoover, but he could not help adding: But we can dream, can’t we? Of course we can, and we do, because sexual slander works. As the proprietor of piles of dirt about his enemies’ sex lives, and as the century’s most sanctimonious morals enforcer—no mean feat, given the competition—Hoover knew this as well as anyone. One need not be accused of something as serious as rape to be brought down; succumbing too readily to the call of the libido is often enough.

•••

As many of the legal screws on sex loosened over the past century, and as what historian Eric Hobsbawm called the unlimited autonomy of individual desire took hold after the Second World War, long-standing fears about the menace of sex reemerged in new, strident forms. More than ever, sex became an issue in power politics, and the sexual habits of individuals became a collective concern. In direct response to growing sexual freedoms, more sex law emerged—much of it no less punishing and irrational than in centuries past. This book aims to trace that process.

In Sex and Punishment: Four Thousand Years of Judging Desire, I followed the movement of sex law from the beginnings of Western civilization until the 1895 imprisonment of Oscar Wilde for gross indecency. If I ventured any further ahead in time in that volume, I feared the noise of the present age would drown out the voices of our ancestors. How could it not? The sexual urge still churns with what Plato called the most raging frenzy, and sexual morality is ceaselessly debated in every corner of society. The sex rules of Renaissance Venice and Victorian England are fascinating, but those governing the lives of the living demand their own book.

This book’s chapters each address different sets of laws, but they all speak to the exercise of power by the strong over the bodies of the weak, based on a roiling mix of sexual mores. They include prostitutes locked up and abused after being rescued by clueless religious groups; Nazi-era Jews killed for defiling the master race with German lovers, and African Americans lynched for sex with white people; homosexuals put through lobotomy cures in mental hospitals and poor black girls forcibly sterilized for being promiscuous; young children marked as dangerous sex offenders for experimenting with playmates; and sexting teenagers jailed as child pornographers. Being a sex criminal often turns on the bad luck of being caught in the wrong place or decade, belonging to the wrong class or race, or doing something on the wrong side of a passing morality panic.

Modern sex law is a Gordian knot to be examined as a whole and untangled thread by thread. Nevertheless, one recurring theme—the impact of science, technology, and mass communications—is woven too tightly into the subject to be confined to any single chapter. Developments in these areas have upended the ways sex is experienced, discussed, and judged. Breakthroughs in contraception, particularly the birth control pill, fueled the postwar sexual revolution more than any other factor, while new treatments have saved billions of people from the ravages of many sexually transmitted infections. Science has also introduced a host of methods for conception without sex, which have, in turn, called into question our most basic notions about families, children, and social identity. No less influential on sex law have been the social sciences, in particular psychology, which continue to shape our beliefs about what sexual behaviors are transgressive and what kinds of people with unsavory desires pose dangers to others.

In this context, the law has been playing a perennial game of catch-up, trying to reconcile long-standing moral strictures with an onslaught of challenges from the men and women in white coats. With its gloss of objective truth, science is often an unassailable basis for determining not only which types of sexual conduct should be condemned outright and which treated as pathologies, but also the types of punishments and treatments that should be imposed. The problem is that justice is impossible unless it is consistent, and in the sciences, the proven truths of one year can well become the next year’s falsehoods. The Bible is a poor basis for distinguishing good sex from bad, but at least it doesn’t change. When an Alabama court, in a 1966 homosexuality case, invoked the savage horror practiced by the dwellers of ancient Sodom, the court tapped into clear and fixed fears. By contrast, science discards any notion the instant a better one comes along. While that is essential for the advancement of knowledge, it can be anathema to equality under law. Doctors and researchers make terrible moralizers. Judges do too, but too often they have been made worse by looking to science for guidance.

Once the law signs on to a prevailing theory—say, that homosexuals are mentally ill and should be treated with icepick lobotomies or castrated; that venereal infections originate from poor, dark-skinned people; or that one may be based on a diagnosis that he or she may commit sex crimes—a lot of people will be harmed before the theory is discarded. (The first two of these scenarios have fallen by the wayside, but the third still undergirds the law in many places.)

The same is true with rape. For much of the past century, the law embraced prevalent psychological theories that women claiming rape were probably lying, that nonvirgins had probably consented, that no often really meant yes, and that, deep down inside, many women wanted to be ravaged. While the law is thankfully jettisoning these theories, experts have come forward to pathologize other types of behavior for the first time. Prepubescent children who touch their siblings inappropriately are now being branded as sex criminals, while parents can risk child-abuse charges for bathing their children with their bare hands instead of a soapy cloth. One group of mental-health professionals even called for intervention when parents and their kids sleep together. Such arrangements, we are told, risk emotional incest syndrome and oedipal castration anxiety.

The effort to root out the sexually dangerous (particularly in the home) is salutary, but must be leavened with common sense, which crusading mental-health professionals and social workers can have in short supply—especially when they are paid by the state for their opinions and treatments. For example, since the late 1940s a vast medical-prison complex has been built around the idea that sex offenders (a classification that once included homosexuals) are hardwired to reoffend. To enable terrified communities to protect themselves, and to prevent sex offenders from going near schools and playgrounds, there are now more than 750,000 people on public sex-offender registries. They are severely restricted as to where they can live and go, whom they can associate with, and what jobs they can take. Many will remain listed for their entire lives. For those whom prison psychiatrists deem still dangerous after serving their prison sentences, indeterminate civil confinements in well-staffed state mental hospitals can await them. However, statistical evidence and recent advances in neuroscience maintain that psychiatrists are no better than coin flippers at predicting which sex offenders will reoffend. In fact, there is a well-founded argument that released sex offenders are less likely to commit crimes than other criminals, even violent ones, and that sex registries have not made communities safer from sex crime. Does that mean it is time to erase the registries, let registrants back into communities, and discharge the professionals whose livelihoods depend on the continued terror of sex offenders? Not likely.

Psychiatric professionals also plumb the psyches of victims to find long-buried mental records of sexual abuse. As the number of child sexual-abuse cases grew in the 1980s and 1990s, it became clear that many older cases would not be heard because the victims had no clear memory or no recollection at all of what had happened. Driven by lawyers and victims’ groups ready to wage war against wealthy organizations such as the Catholic Church, a push began to validate repressed memory as admissible evidence in legal cases. As this effort gained traction, many statutes of limitation were modified and waves of lawsuits were filed. Unquestionably, it has helped to bring sexual abusers to justice, giving long-overdue satisfaction to their victims. But as useful as repressed-memory evidence has been against pedophiles, its reliability remains the subject of intense disagreement. Some people who claim to have been falsely accused of sexual abuse have even organized the False Memory Syndrome Foundation (FMSF). (Interestingly, FMSF’s website lists a series of multimillion-dollar lawsuits against mental-health providers for irresponsibly leading patients to believe that they had been sexually abused.) The trauma for sexual-abuse victims, particularly those abused as children, is painfully real, but the movement to provide a remedy for every wrong, even those decades old, should not ride roughshod over basic notions of fairness.

•••

Anyone in the past century who believed that members of the Catholic clergy were somehow immune to sexual desire, or that many were homosexual, should—as the cliché goes—have had his or her head examined. Since well before the 1905 publication of Sigmund Freud’s Three Essays on the Theory of Sexuality, the sexual urge has been universalized, naturalized, mapped, and documented. Whatever the subtleties or intricacies of Freud’s thinking, the message filtered through that the sexual instinct permeates human life from the cradle to the grave, and that its repression is harmful to the individual and, perhaps, even to civilization itself. Freud was far from the first to note the insistent call of the gonads (Saint Augustine wrote in the fourth century that genital insubordination was humankind’s punishment for original sin), but Freud rescued it from wickedness.

The profound influence of this idea, and those of Freud’s contemporaries such as Havelock Ellis, cannot be overstated. No longer was sexual compulsion the sole province of whoremongers, godless libertines, and dark-skinned exotics. It was in everyone, all the time. Why, asked Ellis, should people be afraid of rousing passions which, after all, are the great driving force of human life? While Freud affirmed that civilization is founded on the suppression of instincts, he criticized enforced abstinence and monogamy. I have not gained the impression, he wrote, that sexual abstinence helps to shape energetic, self-reliant men of action, nor original thinkers, bold pioneers and reformers; far more often it produces ‘good’ weaklings who later become lost in the crowd. For a growing segment of the population—especially those whose faith in moral orthodoxies was rattled by the First World War—these messages were easy to swallow and pleasurable to realize. As the century wore on, few disagreed that a life without sex was a life not well lived. By 1930, one of the US’s most eminent jurists, Augustus Hand, would raise few eyebrows by declaring what was already obvious: The sex impulses are present in every one.

One result of recognizing the pervasiveness of the libido was the birth control movement, most closely identified in the US with Margaret Sanger and in Britain with Marie Stopes. For these women and their confederates, birth control meant much more than the right to say no to their husbands’ sexual demands. It also embraced the right to enjoy sex without the constant risk—and, for poor and working women, the health burdens—of conception. As recalled in 1936 by the New York bohemian and free-love practitioner Mabel Dodge Luhan, Sanger was openly an ardent propagandist for the joys of the flesh. . . . [As Sanger] unfolded the mysteries and mightiness of physical love it seemed to us that we had never known it before as a sacred and at the same time a scientific reality. The fight for birth control rights was a battle for female sexual satisfaction as an end in itself. By framing these tectonic demands as scientific reality, they were invested with objective truth and historical inevitability.

Greenwich Village eccentrics such as Luhan readily integrated these ideas into their personal lives—she even named her dog Climax—but others took the message of sexual freedom much further. The Freud protégé Wilhelm Reich (to whom Freud referred his first patient, an impotence sufferer) made the evangelizing of sexual pleasure his life’s work. Possessed of a restless, brilliant, and, in the end, sometimes unhinged intellect, Reich coined the term sexual revolution in his 1938 book of the same name and also elevated the consistent achievement of total orgasms to an individual and societal imperative. One’s well-being, Reich believed, depended on the ability to dissolve into orgasmic ecstasy. There is only one thing wrong with neurotic patients, he wrote in The Function of the Orgasm (1927), "the lack of full and repeated sexual satisfaction. The nurturing of true sexual pleasure, he maintained, was also a cure for broader social ills—including the fascism that would drive him from Europe. The formation of the authoritarian structure," he wrote in The Mass Psychology of Fascism, takes place through the anchoring of sexual inhibition and sexual anxiety.

Reich and Freud inevitably parted ways. Freud believed that giving sexuality free rein was anathema to civilization; Reich thought otherwise. After the break with his intellectual father, Reich came to the US in 1939 with undiminished zeal for health through orgasmic potency. Soon after his arrival, he invented the orgone energy accumulator, a metal-lined, wooden box about twice the size of a casket that functioned as a hothouse for the libidinous orgone energy Reich believed coursed through the atmosphere. When subjects stepped inside (naked, according to Reich’s instructions), he believed they would be cured of all that ailed them, from sexual problems to varicose veins. The orgone box became chic, drawing the likes of Norman Mailer, J. D. Salinger, and the young Sean Connery as passionate adherents. William Burroughs claimed he had a spontaneous orgasm in his orgone box, while Woody Allen used an orgasmatron as a prop in his film Sleeper. In 1964, years after orgone boxes had been banned as fraudulent medical devices, Time magazine declared that Reich may have been a prophet for the sexual revolution then in full swing, for now it sometimes seems that all America is one big Orgone Box.

Reich was jailed and his books burned after he defied a court order to stop selling orgone boxes, but his linking of sex and freedom deeply affected sexual attitudes, first on the young and then more broadly. His well-thumbed works were obligatory trophies on the shelves of student radicals in the 1960s and 1970s. In 1968, young revolutionaries in Europe and the US scrawled Reichian slogans on walls; in Berlin, copies of Reich’s The Mass Psychology of Fascism were hurled at police, while at the University of Frankfurt, student activists were advised: Read Reich and Act Accordingly! Without Reich, the famous 1968 revolutionary slogan When I think of revolution I want to make love would have been unthinkable. According to Time, thanks to Reich’s ideas the belief spread that repression, not license, was the great evil, and that sexual matters belonged in the realm of science, not morals.

If sexual matters belonged in the realm of science, where does the pseudoscience of eugenics fit in? For early birth control advocates, just about everywhere. Intertwined with the drive to free women from the burdens of multiple pregnancies was the mission to allow the fit to reproduce while preventing births among humanity’s perceived lesser elements. Birth control must lead ultimately to a cleaner race, wrote Sanger, whose passion for eugenics remains a point of discomfort for many who admire her. The most urgent problem today is how to limit and discourage the over-fertility of the mentally and physically defective, she added in another of many pro-eugenics tracts. Sanger didn’t maintain the genetic superiority of whites over other races—poverty, lack of intelligence, and physical disability were her main categories of the unfit—but the foulest racism permeated the birth control movement. Sanger’s British counterpart, Marie Stopes, held similar eugenicist views and even marketed a line of birth control products under the brand name Pro Race.

Eugenics, in its various forms, was anything but a fringe movement in the first half of the century. It was mainstream stuff, embraced by people as respectable as Winston Churchill and Oliver Wendell Holmes. It was only a small step for the law to embrace the treatment of sex criminals (among other defectives) with sterilization. By the 1930s, thousands of homosexuals, prostitutes, and other moral perverts had been sterilized in the US, both to deactivate them reproductively and to cleanse the collective gene pool. Denmark, of all places, was the first country to pass a sterilization law, and for forty years after its 1929 passage about one thousand sex offenders there would come under the knife. The Third Reich demonstrated the excesses of eugenics, while the darker roots of the contraceptive movement have largely been purged from the literature of Planned Parenthood.

Ironically, it was a horrible scientific failure that helped to galvanize the US movement to legalize abortion. In 1962, Sherri Chessen Finkbine (known as Miss Sherri to the Phoenix toddlers who watched Romper Room, the TV show she hosted) took the drug thalidomide during her fifth pregnancy for morning sickness. When she learned that thalidomide carried a high risk of birth defects, she arranged for a discreet abortion at a local hospital. However, a wave of publicity about her case—and the threat of prosecution—caused the hospital to change its mind and turn her away, sparking lawsuits and a broad firestorm of controversy. Miss Sherri reluctantly found herself on the cover of Life magazine.

After being turned down for an abortion in Japan, Finkbine had the procedure done in Sweden, where she learned that the fetus had neither arms nor legs. The case’s high profile, and the broad popular sympathy for Finkbine it inspired, blew open the abortion debate. Controversy has raged for fifty years since. As US abortion foes stage a new attack on pro-choice policies by marshaling new theories in neuroscience—for example, that fetuses at an early stage have consciousness and feel pain in the womb, even before viability—it’s useful to recall how the discussion began.

In Britain, the abortion issue was jump-started in 1938, after a fourteen-year-old girl was gang-raped and made pregnant. A doctor refused to terminate the pregnancy, reasoning that because the assailants were upper class, she might be carrying the future prime minister of England. The girl turned to the president of the Royal Society of Medicine’s OB-GYN section, Aleck Bourne, who took up her cause and invited prosecution by performing an illegal abortion. He was indeed prosecuted, and he claimed, in his defense, that he had performed the procedure to save the girl from mental collapse. While Bourne was acquitted, it would not be until 1967 that abortion on demand in Britain was allowed.

In the Netherlands, matters progressed more quickly. In the 1950s, many Dutch women still had to obtain written permission from priests before doctors would explain the details of the rhythm method (a natural form of birth control based on timing ovulation) to them. By 1961, however, birth control pills were widely available, although popular ambivalence about the subject remained, as it would about abortion. In light of the dangers of back alley terminations, the Dutch government tacitly allowed the procedure to be conducted at certain clinics. In time, public support increased for broader legalization, which was finally adopted in 1984.

The Soviet Union was the first European country to legalize abortion, a step it took in 1920 as the Bolsheviks reversed czarist-era laws governing sex and reproduction. (Homosexuality was also decriminalized.) The abortion law was reversed in 1936 as the Stalin regime took a sharp sex-negative turn; restrictions were eased again in 1955 under Khrushchev. Poland followed suit in 1956, as the government there began to finance abortions on demand. By the early 1990s, about one million abortions per year were performed in Poland—equal to the number of live births. However, that changed in 1990, when the country shifted from official communist atheism to a much more Catholic-friendly system. Harsh abortion restrictions were passed, and subsidies on birth control pills were eliminated. As a result, Polish women went to German border towns to have the procedure done. In 2010, Der Spiegel reported on a woman coming to the German town of Prenzlau for an abortion accompanied by her boyfriend—a Catholic priest—who said that Poland’s abortion laws didn’t reflect real life in Poland anymore. The woman’s doctor was also assisting a pregnant seventeen-year-old Polish girl. All the girls in my class have sex, she said. Afterwards they go to confession.

Five years after the Polish girl made that statement, teen sex has been transformed everywhere by advanced communication technology. While porn sites get more traffic than Netflix, Amazon, and Twitter combined, that heavy visual flow of flesh is augmented by a flood of private exchanges of sexual images, videos, and text messages, particularly among youth. For many kids, sexting is a temporary substitute for sex—what one Virginia girl called a way of being sexual without being sexual. Sexting also may prime teens’ hormonal pumps for the real thing. Some research shows that young people who sext are more likely to engage in unprotected sex or sex with multiple partners.

In any event, current law is unsuited to the way the technology is being used. To choose a recent example, after a seventeen-year-old Virginia boy’s fifteen-year-old girlfriend sent him pictures of herself, to which he responded with a video, the boy was charged with possessing and transmitting child pornography—which could land him in jail for years, and on a public sex-offender list for life. Prosecutors also sought permission to photograph the boy’s erect penis (after giving him an erection-producing injection) to compare with images on his cell phone. Using a law designed to protect children from sexual exploitation, the prosecutors thus attempted to create child pornography.

The nebulous zone between victim and perpetrator that minors often occupy becomes more untenable when teens voluntarily display themselves on webcams for paying viewers. This was the case with self-described cam-whore Justin Berry, who, starting at age thirteen, built a tidy business undressing, showering, masturbating, and having sex online for hungry fans. Over the course of his five-year venture, he attracted about fifteen hundred paying customers and generated hundreds of thousands of dollars in revenue. If Berry can be considered exploited, did he exploit himself? What about the company that hosted his websites? In 2007, the web-hosting company’s owner, Kenneth Gourlay, was convicted for child sexually abusive activity and distribution of child sexually abusive material. (Berry was given immunity from prosecution in exchange for testifying against Gourlay and others.) Trial testimony revealed that after Berry started his online sex business, he asked for Gourlay’s help to bring it to the next level. The two worked together to set up new websites, establish a members only section, and maximize profitability.

Gourlay asked the court to instruct the jury that Berry was an accomplice in the pornography charges. The court’s refusal to do so was upheld on appeal, the higher court reasoning that it would be paradoxical to label Berry an accomplice when the law was supposed to protect him, and when a child (anyone under eighteen) could not legally consent to the child sexually abusive activity. Paradoxes notwithstanding, Berry clearly knew what he was doing. Refusing to label him as an accomplice in his own business activity is to ignore reality, which for courts is a dangerous thing to do.

In the context of ventures such as Berry’s, the subjects of sexual images are the ones who (at least at first) send them into cyberspace themselves. Other cases, where images are distributed against the subjects’ will, are much more disturbing. In 2010, an eighteen-year-old New Jersey college student, Tyler Clementi, leapt to his death from the George Washington Bridge after his roommate secretly used a webcam to stream Clementi’s partially clothed encounter with a male companion. The roommate also urged his friends and Twitter followers to watch the streaming of a second such tryst. (This later broadcast never occurred.) In 2012, the hideous rape of an intoxicated teenaged girl in Ohio was recorded, discussed, and bragged about on social media by the students who assaulted her. When the girl awoke, she learned that her peers already knew what had happened to her and had seen a picture of her naked. As horrifying as these cases are, the law has benefited. For just as many of the monsters among us think nothing of recording their misdeeds and boasting about them on social media, by doing so they create a useful trail of incriminating evidence. The perpetrators in these cases left vast numbers of texts, Twitter posts, and other real-time records of what they did and thought, without which their guilt might not have been proven. People who compulsively record their every thought and deed make the work of law enforcement much easier.

•••

Sex and Punishment covered roughly forty centuries; this volume considers about twelve decades. However, the last century has produced an immense amount of sex law. If it were just a question of volume, however, the story would not hold much interest. Rather, it is the law’s effort to keep up with society’s transformations, and its attempt to apply moral traditions to a world where they often no longer fit, that makes the current period so absorbing. Biblically inspired rules lose their footing when (to recall Nietzsche) God is dead, when women and minorities are equal (at least in theory) to white men, when sex and procreation are decoupled, and when scientists and doctors come into the picture. Add to that the realities of power politics and potent new demands for laws based on traditional sexual morality, and judges can be forgiven for a certain amount of timidity. While the past century has seen large-scale discrediting of old sex laws, no one can agree on what should replace them.

In On Photography, Susan Sontag wrote that a photographic image is a thin slice of space as well as time defined by the photographer’s choice of subject matter and the context in which the picture is presented. Photography thus gives an imperfect view of social reality consisting of small units of an apparently infinite number. The Boundaries of Desire has the same shortcomings: by describing the experiences of certain people, or the rules of some groups at given points in time, the impression may be conveyed that the whole truth is coming through. In fact, the truth is much larger than that. Sex law is central to the lives of all people, all of whom act on it in unique and contradictory ways. Each person, as a spinning atom of moral certainties and doubts, comprises a society as uncomfortable with itself now as it is with its past and future. Merely restating the rules of sexual engagement or describing how they are sometimes applied cannot portray the entire social reality of sex. Until someone figures out how to present the whole of human experience in one bite-size chunk, we shall have to content ourselves with a few compelling snapshots.

CHAPTER 1

FAMILY AND MARRIAGE

If You Can’t Rape Your Wife, Who Can You Rape?

Questions about sexual power in the home are questions about our interior lives. We all have families in one form or another, and we all have opinions as to what a family is or should be. How can we not? Even with assisted reproductive technologies, we still have mothers and fathers, and everyone’s foundational experiences center on the presence or absence of a family, and family dynamics. Our ability to make lasting connections with others is largely governed by our responses to these formative events. To the unending enrichment of psychotherapists and self-help book publishers, we spend much of our adult energies trying to make sense of what happened while we were under our parents’ sway. For the student of sex law, matters become interesting when the rules governing sex in the home are set from the outside. The question of who should step in when those rules are broken then arises.

Before going into the modern law of sex and the family, we look back to ancient Rome, to the exalted virgins who were viewed as Rome’s wives and sisters, and whose lives illuminate some of the dilemmas women now face. The Vestal Virgins were Rome’s top-ranked female priests, selected as girls for their unblemished bodies and perfect pedigrees, and then living in the circular temple of the goddess Vesta in the city’s Forum. As long as they eschewed sex, kept Rome’s womblike flame alight in the temple, and performed other important duties, they enjoyed more privileges than even emperors’ wives. Because their untouched bodies symbolized Rome’s unbroken walls, their continued virginity was seen as critical to the city’s safety and well-being. When Rome suffered famine or war losses, these troubles were often taken as proof that a Vestal had broken her vow of chastity and that more catastrophes were imminent. Matters could not be set right until the guilty priestess was buried alive.

The Vestals were thus required to live a zero-sum equation: they were either sexless saints or accursed whores. Few females have ever lived under quite this stark a dichotomy, but that is only a matter of degree. Women have long faced the choice of guarding their respectability with sexual restraint or indulging their sexuality and risking ruin. While sexually transgressive females will no longer (at least in the West) be buried alive, or impaled as in ancient Mesopotamia, female sexuality is still incendiary. The Madonna/whore double bind is woven deeply into Western family law. From the beginning, women have been whipsawed between the roles of neutered domestics and sex workers. Assertions of sexual independence by married women routinely resulted in their being socially ostracized, impoverished, and separated from their children. These issues have lost little currency in recent decades. Under long-standing legal traditions, a woman could be either a dutiful wife or sexually independent—not both.

As women have pressed for the right to control their sexuality and reproductive lives, the Western family has also come under examination. No longer is it a given that women are either wife-goddesses to be protected or sluts to be used and jettisoned, and no longer must married or single women pay for their sexual freedom with the loss of their safety. At the same time, as people form living arrangements without intending to have children, or as they use technology to conceive without sex or use the DNA of three people, the push is under way to recognize family structures beyond marriage.

However, we are getting ahead of ourselves. The process toward the normalization of female sexuality has been neither linear nor neat. Nearly every change in law has been decried by opponents as an attack on marriage, family, and the home. In the process, the definitions of these words have been reimagined and sanitized to the point where they mean little. Just as we reflexively call a law unconstitutional when we think it is unfair, or brand a country as undemocratic because we disapprove of its leaders, nearly every new sexual prerogative for females has been lambasted—often in apocalyptic terms—as undermining the traditional family that supposedly forms the bedrock of our way of life. However, amid all the raised voices and mythologizing, no one seems to have given much thought to what marriages, families, and homes were really like before the push for women’s sexual and reproductive rights gained legal traction.

The fact that recent changes in sex and family law horrify large segments of the population does not, ipso facto, make the past anything to admire. A century ago, the family home was no amber-lit sanctuary where devoted spouses serenely played the roles given to them by a just and loving God. Rather, the law made the home a safe haven for sexual violence and abuse. Even worse, the judges and legislatures who kept this system in place did so using the same pro-family rhetoric invoked by today’s social conservatives.

Conflicts over the definition and fate of the family have unfolded in a broad array of settings. In 1920, for example, France criminalized all contraception, reasoning that permitting women to choose whether to become mothers threatened civilization itself. In the US, starting in the 1920s and continuing into the 1970s, thousands of poor girls and women were forcibly sterilized for having children out of wedlock. Under the cruel logic driving this policy, they were deemed sexually uncontrollable and feebleminded, and thus a source of contagion to the human gene pool. For the good of the species, their reproductive capacities were cut short. In Florida in the 1970s, Christian right activists argued that a constitutional guarantee of equal rights for women would destroy the American family as the very building block of our civilization. (Since Florida was instrumental in blocking the Equal Rights Amendment—a commonsense measure that shows no sign of being revived—we can thank the Sunshine State for keeping civilization intact.) Given these beliefs, it is no surprise that many of the same pro-family advocates greeted the spread of AIDS in the 1980s as a sign of divine displeasure with those leading anti-family sex lives.

Heterosexual marriage is no longer the default arrangement for people to have sex and raise children. Rather, it has become one of several options. Vast segments of the reproducing population continue to divorce or rule out marriage altogether, sculpting their unions according to their own tastes or forming families in which sex plays no part at all. In response to these developments, horrified opponents have invested marriage—the one-man, one-woman, no-test-tube kind—with the unique capacity of preventing widespread moral collapse. Whether this will prove to be true is anybody’s guess, but under no circumstances ought we to look back fondly on the models of a century ago, when marriage was more akin to state-approved sexual slavery than a society-affirming framework for love and procreation.

Not So Nice Up Close: Rape and Violence in the Home

Broad sexual attitudes in the early twentieth century differed little from those of the previous two thousand years. The stifling influence of religion in enforcing sex-negative beliefs had abated somewhat, but doctors and scientists were picking up the slack. Sexual sins were becoming symptoms of mental illnesses. Just as medieval religious texts cataloged hundreds of sexual transgressions, the new field of sex research parsed and pathologized vast numbers of sexual acts and desires, from homosexuality and masturbation down to passions for striped handkerchiefs and the smell of roses. And while biblical injunctions restricted sex to the marriage bed (and then only to produce offspring), scientific theories now branded much nonreproductive, nonmarital sex as psychopathic. Saint Paul threatened those who pursued sex outside marriage, or for fun, with banishment from the Kingdom of God. Two millennia later, such people could find themselves excluded from earthly society, sterilized, and confined in mental hospitals.

When the purpose of marriage is reproduction, the institution becomes brutal. The personal fulfillment of spouses, especially wives, means little next to the key business at hand. A wife’s lack of pleasure in lovemaking, or her ill will toward her husband, raised concerns only to the extent that it affected her ability to conceive. If women sought other sources of intimacy or arousal, the potential penalties were barely less ruinous than those that wives had suffered for centuries. While men were expected to protect their wives from outside dangers and not beat them too severely, long-standing laws still allowed husbands to rule and chastise their women. Rather than protecting battered wives, the courts often looked the other way, reasoning that by doing so they were encouraging family harmony and protecting the sacred home from government intrusion.

In 1874, in North Carolina, Richard Oliver returned home cranky and hungry after a long night of drinking. His wife prepared him some bacon and coffee, but that only worsened his mood. The meat, it seems, was crawling with insects. Flying into a mad rage, Oliver threw the coffee pot across the kitchen. Then he went outside, fashioned two four-foot switches from a nearby bush, and proceeded to whip his wife as hard as he could. Had bystanders not stopped him, he would have continued until he wor[e] her out. For Oliver’s efforts, a local court fined him ten dollars—a penalty he thought outrageous. He took the case to the state’s supreme court, arguing that he had every right to treat his wife as he wished.

Taking sympathy on the wife, the court let the fine stand, but then it doubled back and signaled to the state’s other violent husbands that the law was still on their side. Public policy, the court explained, required courts to protect the sanctity of the domestic circle by ignoring all but the most extreme cases of violence where, for example, permanent injury has been inflicted. Short of that, the court declared, it is better to shut out the public gaze, and leave the parties to forgive and forget. In other words, unless a wife had been worn out by her husband’s fists or whip, she had only hope to protect her.

When the State v. Oliver case was decided, North Carolina could still claim that it was more protective of married women than ancient Assyria, where a husband could whip his wife, pluck out her hair, mutilate her ears, or strike her with impunity. However, given that Assyrian law is more than three thousand years old, and that the Assyrians were boorish even by ancient Near Eastern standards, that was not much to boast about. In fact, for much of the nineteenth century, as in ancient societies, American wives were essentially the property of their husbands, with only slightly greater rights than beasts of burden. Under principles reaching back to early English common law, marriage came with a metaphysical oddity called coverture, by which the very being or legal existence of the woman is suspended and consolidated into that of the husband: under whose wing, protection and cover, she performs everything.

The idea of coverture was already coming under criticism by the turn of the twentieth century, at least when money and property were involved. Wives had steadily gained the rights to own and sell their own property, appear in court as individuals, and even sue their husbands for stealing or ruining their stuff. However, this small recognition of a married woman’s natural rights was the easy part: a wife may have gained control over her deceased mother’s silver, but her genitals would remain her husband’s chattel for a long time to come.

Traditionally, when a woman said I do at the altar, the law heard her say you can to her husband for a lifetime of his sexual demands. The rule was put well by England’s chief justice, Matthew Hale, in the seventeenth century:

But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their [marriage] the wife hath given up herself in this kind unto the husband which she cannot retract.

According to Lord Hale and three centuries of subsequent British and American jurists, a woman’s marriage vows included the promise of limitless access to her body, regardless of her own desires. Brides never actually stated such a promise, of course—most must have thought they could say no at least once in a while—but the law rarely lets reality stand in the way of a good oppressive doctrine. In fact, should a wife later forget her legal status as a sex toy with a pulse, the law permitted her husband to use physical force to remind her.

This rule is referred to in US and British law as the Marital Rape Exemption, though I prefer to call it what it was, a Rape-Your-Wife Privilege. It proved to be one of the sturdiest doctrines in the history of sex law, outlasting bars against abortion, birth control, and interracial marriage. Until recently, it was enshrined in the laws of every state in the US. The law wasn’t even criticized much until the last quarter of the twentieth century, when it was getting worse: rather than cut the Rape-Your-Wife Privilege back or eliminate it, some states were expanding it to insulate men who forced themselves on their live-in girlfriends.

In Britain, the Rape-Your-Wife Privilege first showed a crack in 1949, when a court held that a husband could not force himself on his wife if a court order separating them was already in place. However, a few years later, a British court sided with a husband who raped his wife a year after she had left him and petitioned for divorce. Incredibly, the court found that the wife had still consented to sex with her husband even though he had thrown her to the ground three times before raping her. The Rape-Your-Wife Privilege would not be definitively abolished in Britain until 1991.

It would take relentless pressure from second-wave feminists and anti–domestic violence activists to eliminate the Rape-Your-Wife Privilege in the US. In the 1970s, as one commentator put it, it was still the law that a husband forcing sex on his wife was merely making use of his own property, but this was changing. In a groundbreaking 1984 decision, New York’s highest court exposed the rule for the horror that it was. The case involved Mario Liberta, an abuser whom a court had ordered to stay away from his wife, Denise. Some months later, Liberta lured Denise to his motel room, where he attacked her and, as their two-year-old son watched, forced her to have oral sex and intercourse. Liberta never denied what he did to Denise that night. Rather, he argued that because they were technically married, the law should stay out of their private sex lives. In effect, he asked the court to do what courts had always done—protect the sanctity of the domestic circle. That this circle was now a tawdry motel room and the marriage a shambles were irrelevant details. Liberta and Denise were still husband and wife, and that made violent sex his prerogative.

Three decades later, Liberta’s argument sounds like a dispatch from a barbaric netherworld, but it was taken seriously. In fact, he won in the lower court. After years of subsequent legal wrangling, the state’s high court declared, finally, that the Rape-Your-Wife Privilege was indefensible on any level. Rape was rape, the court held, and it was nonsense to treat rape committed by a husband differently from that perpetrated by a stranger: A married woman has the same right to control her own body as does an unmarried woman. As for the idea that the privacy of the home should protect a married couple from state intrusion, the court opined that marital privacy protects consensual acts, not violent sexual assaults.

So much for New York, but the Rape-Your-Wife Privilege had many passionate defenders elsewhere. It was not until 1993, when Oklahoma and North Carolina were dragged kicking and screaming into the civilized world, that marital rape became a crime in every state. The arguments in favor of keeping the law in place still astonish. In 1980, for example, Florida representative Tom Bush argued that governments had absolutely no business . . . invading the sanctity and intimacy of a marriage, even when the invasion revealed that the husband was raping his wife. The following year, the Colorado Supreme Court upheld the rule on the ground that putting a rapist husband in jail was an obstacle to the husband and wife eventually reconciling. However, of all the defenders of the Rape-Your-Wife Privilege, California state senator Bob Wilson was perhaps the most forthcoming when, in 1979, he asked a group of women lobbyists: If you can’t rape your wife, who can you rape?

While spousal rape is now prohibited, it is underprosecuted in the US, and a number of remaining loopholes make it a less severe crime than rape committed by a stranger. Many courts and lawmakers could not shake their indulgence toward sexually violent husbands. In 1985, for example, not long after Pennsylvania eliminated the Rape-Your-Wife Privilege, its highest court complained that a legal monster had been set loose, as juries had now been invited into the privacy of the marital bedroom for the purpose of supervising the manner in which marital relationships are consummated. In other words, how can anyone determine whether sex between a husband and wife was old-fashioned consummation or violent assault? Someone might have reminded the court that such determinations are exactly what courts and juries are supposed to do and that difficulty figuring out whether sex is consensual is no excuse to give up the effort.

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A century ago, the sanctity of the domestic circle was also invoked to protect parents—especially fathers—who abused their children. Parents might find themselves in hot water if they inflicted serious injuries, but short of that it was their prerogative to smack their children around—or fondle them—with little interference from police or the courts. Parents were encouraged to be strict with their kids, both to keep discipline in the home and to rid children of the vices they were believed to have been born with. Parental discipline, even if savage, was rarely punished. In North Carolina, for example, the state’s highest court refused in 1886 to allow the prosecution of a father who choked his habitually disobedient daughter until her tongue came out of her mouth, whipped her thirty times with a switch, and dislocated her thumb. The reason? The best interest in society would be ill served by jailing the father, who was only trying to correct his daughter’s bad behavior—especially as a trial would lift the curtain from the scenes of home life, where parental control must reign supreme.

The authority of parents to sexually abuse their children was marginally less broad than the authority to beat them. In Washington, in 1905, one E. W. Roller raped his fifteen-year-old daughter Lulu. Thankfully, he was apprehended and sent to jail, but Lulu also sued her father in civil court for damages. She won $2,000, but the state’s supreme court reversed that award. Allowing a child to sue her father, declared the court, even for the heinous crime of rape, could be detrimental to the harmony of the domestic relations of the home and family fireside. The court allowed that Roller’s rape of his daughter might have already blown ill wind into the cozy confines of their home, but that was secondary to protecting all parents from the nuisance of being sued by their kids. Where, the court asked, should the line be drawn? If Lulu were allowed to go to court against her father, what would stop other kids from suing their parents for acts less severe than rape?

The recognition of the right of children to not be abused by their parents was slow in coming. It was a long climb from the horrors of the Roller household to the current recognition that violence and sex have no place in the parent–child relationship. At the beginning of the twentieth century, however, when parents were presumptively immune from most consequences of mistreating their children, such enlightenment was a long way off.

Adultery and Women-cum-Men

Well into the twentieth century, husbands had the right to sue their wives’ lovers for enticement, alienation of affections, or criminal conversation. They all meant the same thing: by having sex with another man’s wife, the lover robbed the husband of the wife’s exclusive sexual services and defiled the marital bed. That the wife might have desired the liaison or even initiated it meant nothing. As one British commentator put it in 1937, regardless of the wife’s actual desires, the law made her no more capable than a horse of consenting to an adulterous adventure. Neither did it matter when the husband was unable to meet his wife’s sexual needs: impotent husbands had the same exclusive right to their wives’ bodies as men with functional equipment.

There was no pretense that the adultery laws were reciprocal. In practical terms, women were told to expect their husbands to stray, and to put up with it. The unnamed wife of Frank W. Duffies learned as much in 1890 when a Wisconsin court schooled her on the basics of marital relations. Mrs. Duffies brought a lawsuit claiming that Frank had been enticed away from her. In throwing her case out, the court described the natural and unchangeable conditions of matrimony, with which it refused to tamper. Wives were more domestic than husbands, the court instructed, and stayed constantly at home. There, their purer and better natures and the genial influences of home life primed them to give their husbands the full range of their comforts and advantages. By contrast, husbands manned the outside world, where they worked to protect their families from privation. Out in the field, husbands met with temptations, enticements, and allurements that naturally led them to stray from their wives. Mrs. Duffies should have expected this. Besides, the judge added, if she was allowed to sue for the loss of her husband’s affections, wives everywhere would do the same, and all hell would break loose.

The Duffies case’s portrayal of wives as housebound ciphers and husbands as vigorous masters of the outside world was not just the sentimental musing of