Sex and Punishment: Four Thousand Years of Judging Desire (2 page)

The Antioch College Sexual Offense Prevention Policy of 2006 follows a similar line, although it is more detailed. “Grinding on the dance floor is not consent for further sexual activity,” warned the policy; neither are body movements or “non-verbal responses such as moans.” Sex is forbidden with any person who is asleep, intoxicated, or suffers from “mental health conditions.”
³

American university sex codes have been ridiculed as overly prudish, and college disciplinary boards mocked as kangaroo courts, but they are not going away. In fact, they recently became more accommodating forums for sexual misbehavior claims. In 2011, the U.S. government informed publicly funded universities that accusers in sex cases must win if it can be shown by a “preponderance of the evidence”—that is, a mere 51 percent likelihood—that misconduct took place, despite the fact that the question of sexual wrongdoing often turns on the murky task of defining the power relationships between the people involved. (In U.S. criminal courts, the standard of proof is “beyond a reasonable doubt.”) Duke University’s rules add to the ambiguity by stating that sexual misconduct may exist where there are “real or perceived power differentials between individuals” that “may create an unintentional atmosphere of coercion.” How anything resembling justice can be dispensed under these standards is difficult to imagine.

REGARDLESS OF THE setting, no one questions the law’s primary role in resolving sexual conflicts. A person violating the shifting rules of sexual conduct in modern Western societies will not be accused of witchcraft, but that is often just a matter of terminology. Anyone, no matter how highly placed, who engages in sexual contact that is out of sync with prevailing attitudes risks being demonized and steamrolled in public by the legal system. Consider the boorish men of influence who are caught taking what they see as the perquisites of their positions. The prominent French economist and politician Dominique Strauss-Kahn’s allegedly violent sexual encounter with an African immigrant maid in a New York hotel suite quickly became an international incident in which the limits of class privilege were much discussed, especially in France. President Bill Clinton’s dalliances with a White House intern, revealed in an unrelated sexual harassment case against him, resulted in his impeachment in 1998 by the U.S. House of Representatives (though he was acquitted by the Senate). Polish-French film director Roman Polanski, on the run since his well-publicized 1978 California conviction for having sex with a thirteen-year-old girl, again became a universal symbol of criminal sexual excess when he was arrested in 2009 by Swiss authorities at the request of U.S. authorities. (He was later released.) Even powerful corporations get tagged for inadvertent transgressions. The fleeting exposure of singer Janet Jackson’s breast during the 2004 Super Bowl telecast resulted in more than $500,000 in government fines against the network that aired the game, CBS, and years of wrenching litigation over sexual “decency” on the American airwaves.

With sex law, context is everything and consistency should not be expected. Under slightly different circumstances, none of these events would have sparked a controversy. Many people still cannot accept that Strauss-Kahn was chased down and jailed for allegedly forcing sex on a maid; one of his defenders dismissed the entire affair as a mere
troussage de domestique
(roughly, “lifting a servant’s skirt”), not worthy of too much attention. Taking the long view, this comment, while repulsive, has some logic. From the earliest times, female domestic servants have been viewed as snacks for the sexual appetites of their masters. Such women effectively had no rights to their bodies, much less to be taken seriously by police and the courts when they accused a powerful man of rape. Tellingly, the case against Strauss-Kahn was dropped after questions arose concerning his accuser’s past history, but that did not resolve the question of whether he sexually assaulted her as she described. If he did force himself on the woman, both this writer and, it is safe to assume, the readers of this book would consider him to be a monster. However, it is instructive to remember that this perspective is the historical exception.

The strobe-quick exposure of Jackson’s breast would have incurred no penalty had it been aired only on cable television or in a theatrical film, instead of during a major television broadcast. Jackson’s “wardrobe malfunction” also occurred while an ultra-conservative government was in power. (Shortly before the Super Bowl, the country’s chief law enforcement officer, Attorney General John Ashcroft, ordered that drapes be placed to hide a bare-breasted aluminum statue called Spirit of Justice, which had been standing undisturbed in the Great Hall of the Justice Department for decades.
⁴
) Bill Clinton, meanwhile, was hardly the first president to commit adultery, but he was the only one to be sued for sexual harassment, and the only one to suffer a vote of impeachment for lying about his infidelity.

Polanski’s legal timing was arguably the most unfortunate. When he had sex with the girl, statutory rape was a felony in California, and a serious one at that. Had he done the deed a century or so earlier, when California’s age of consent for sexual activity was twelve, England’s thirteen, and Delaware’s seven, he would have had no legal trouble. Even after the age of consent was raised, judges rarely imposed jail time on convicted men and the girls were often branded more as temptresses than victims. (It is true, however, that Polanski was not only accused of statutory rape: The girl testified that the director had drugged and intimidated her [an allegation he denied], but it is the statutory rape charge that has dogged him these past three decades.)

The existence of differing cultural mores usually has no effect on one’s risk of punishment for sex crimes. A California man recently received a 152-year prison sentence for having sex with two twelve-year-old boys. Would his legal defense have been strengthened had evidence been introduced that certain New Guinea tribes believe boys need homosexual encounters in order to mature into manhood?
⁵
It is unlikely. In the stacks of court papers, legislation, and newspaper editorials on the subject of gay marriage, has anyone pointed to Sudanese Azande tribal traditions, which support the marriage of young boys to soldiers? Again, no. In the context of Western sex law, the customs of non-Judeo-Christian cultures are irrelevant. Far from appearing overly prudish, they appear to be not prudish enough. At the same time, Western observers express outrage whenever a Muslim wife faces being stoned to death for adultery, though the Old Testament itself (Deuteronomy 22:22) prescribes the death penalty for both adulterous women and their lovers. In early 2012, when this book went to press, gay marriage was allowed in eight American states and the District of Columbia, while the legality of mentioning homosexuality in Tennessee’s public elementary and middle schools was being debated in that state’s legislature.

SINCE THE EARLIEST periods of recorded history, lawmakers have tried to set boundaries 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. At any given point in time, some forms of sex and sexuality have been encouraged while others have been punished without mercy. Jump forward or backward a century or two, or cross a border, and the harmless fun of one society becomes the gravest crime of another. This book aims to tell that story.

I began my research on a much broader front, trying to trace the path of Western law generally by using colorful cases as examples. As I reviewed the first legal collections from the ancient Near East, I noticed that the earliest lawmakers were preoccupied with questions of sex. Everywhere I looked, there were specific rules on sexual relations with pigs and oxen, prostitutes, family members. Sex was evidently more micromanaged then than even now, with the surprising exception of same-sex relations—which were ignored almost entirely by the law until the Hebrews labeled homosexuality a terrible crime on a par with murder. Additionally, sex was sometimes used as a punishment in itself, as when the wife of an Assyrian rapist was ordered to be raped in turn as punishment for her husband’s crime, or when men who damaged Egyptian property markers were required to deliver their wives and children to the rough affections of donkeys.

It soon became clear that sex law was as passionate and mercurial as the sex drive itself, and could support a rather interesting book on its own. Extraordinary flesh-and-blood cases—much flesh, more blood—jumped out of the dustiest volumes, begging to be told. Building on the work of modern historians such as Eva Cantarella (
Bisexuality in the Ancient World
), Sarah B. Pomeroy (
Goddesses, Whores, Wives, and Slaves
), and James A. Brundage (
Law, Sex, and Christian Society in Medieval Europe
), as well as on translations of original sources, I have mapped out the story of Western civilization from the perspective of law and libido.

The chapters organized themselves organically, according to time period. The question was when to stop. As with any era of history, no ceremony declared the end of one epoch and the beginning of another. I decided, rather arbitrarily, to halt the inquiry in the last part of the nineteenth century, with the imprisonment of Oscar Wilde for “gross indecency” with one of his young lovers. If I traveled much further into the present, I feared, the noise of our most recent century would drown out the voices of our ancestors. Today’s sex issues are touched on occasionally for perspective, but a detailed treatment of the roiling twentieth and twenty-first centuries will require another volume.

In any event, the experiences of the distant past cannot help but illuminate the issues of the present, especially where sex and law are concerned. For example, as the issue of gay marriage lurches through the courts and legislatures of the United States and elsewhere, with all participants in the debate claiming to have history on their side, it’s helpful to know that loving and committed unions between men were sanctioned by Christian and secular law alike many centuries ago, when no one recognized homosexuality as what Michel Foucault called a “hermaphroditism of the soul.” Similarly, before we rush to impose fines on television networks for broadcasting “indecent” images to the masses, it is useful to understand how obscenity fell under government control in the first place. Sexually explicit materials were never regulated until they became available to mass audiences through the advent of printing. Those who wrote and enforced the law always had access to all the smut they could digest. Finally, as we throw the likes of Strauss-Kahn and Polanski atop the trash heap of outdated boors, it helps to know how our legal and religious traditions made such sexual predators possible.

Of course, rape, adultery, incest, and all the other issues that unfold in the arena of sex law have been taking place since the beginning of human existence. All that changes are the methods people use to exercise control over one another’s bodies, and the reasons they give for using them.

1

CHANNELING THE URGE: THE FIRST SEX LAWS

F
OR A FOUR-THOUSAND-YEAR-OLD Mesopotamian homicide case, the record is impressively intact. Decades of archaeological excavations have yielded multiple copies describing the case in detail, spelled out on broken clay tablets embossed with cuneiform writing. The duplication makes sense, given that the victim was Lu-Inanna, a high priest of Enlil—one of this civilization’s most important gods—and that the murder took place in Nippur, a holy city. By the time the trial came up, Nippur had been continuously inhabited for thousands of years.

The charge was murder, although sex was all over the case. The accused were two freedmen, a male slave, and Lu-Inanna’s widow, Nin-Dada. Given the severity of the crime and the high status of the victim, the case was taken first to the king in nearby Isin. He took a good look, and then assigned it to the nine-member Assembly of Nippur.

By the time the case reached the assembly, no one doubted that Lu-Inanna had been killed by the three male suspects, nor was there any question that they had told Nin-Dada what they had done. The key remaining issue was why Nin-Dada had not immediately given up the killers to the authorities. Rather, the record says, she “opened not her mouth, covered it up.” Had she participated in the murder? If so, her execution—most likely by impalement—was a certainty. If she had not, then what crime had she committed by keeping her mouth shut?

First, a little law. It was forbidden in Mesopotamia not to report another person’s misconduct, especially when sex was involved. (It was no different in nearby Assyria, where, for instance, prostitutes were not allowed to wear veils: If a man observed a prostitute wearing a veil and said nothing, he would be whipped, have a cord forcibly run through his ears like a horse’s bridle, and then be led around town to be ridiculed.) Mesopotamian barmaids were required to eavesdrop on their criminal customers as they drank. If the barmaids heard something incriminating and failed to report it, they could be put to death. Adultery, at least when committed by women, was also punished harshly. A disloyal wife who had plotted against her husband was treated worst of all, by being stuck on a long pole and left to suffer a slow and very public death.

There was no proof that Nin-Dada had ever had sex with any of the killers, or that she had taken part in her husband’s murder. Had she been well represented before the assembly, she might have squeaked through the trial with her life. Her supposed advocates could not have done a worse job, however. They presented a “weak female” defense, arguing that Nin-Dada was so helpless and easily intimidated that she had had no choice but to remain mute. As if that argument were not a sure enough loser, her defenders went even further, claiming that
even if
she had participated in the murder, she still would have been innocent because “as a woman . . . what could she do?”