Sex and Punishment did not start out as a project about sex. My initial, admittedly overambitious, goal was to write a narrative history of the law using colorful cases as examples. I decided to start with the oldest written laws in existence and take it from there. I was surprised by what I found.
As I looked at the first written laws from ancient Mesopotamia, 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, and family members. Sex was evidently more micromanaged then than it is now, with the exception of same-sex relations, which the law ignored almost entirely until the Hebrews labeled homosexuality a terrible crime against God and man. Additionally, I saw that sex was sometimes used as a punishment in itself, as when the wife of an Assyrian rapist was ordered 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 jumped out of the dustiest volumes, begging to be told. Sex and Punishment brings them back to life.
I would be glad if, after reading my book, people paused before they condemned others for their sexual behavior. Of course, violence and abuse of power are always wrong, but we must realize that we all have inherited attitudes and morals that are, at bottom, arbitrary.
Here are 11 of the most outrageous historical cases of sex being criminalized:
A Castilian law from the 13th century commanded that men who "sin against nature with each other" were to be "castrated before the whole populace" and then "hung up by the legs until dead, and that their bodies never be taken down." Elsewhere, homosexual offenses brought burning at the stake and hanging by the "virile member." By 1300, there were laws punishing homosexuality harshly in virtually every jurisdiction. One city required not only that homosexuals be burned but that their families be forced to watch the execution and to remain until the fire was out. <em>(Photo via stigeredoo on <a href="http://www.flickr.com/photos/stigeredoo/21943529/sizes/z/in/photostream/" target="_hplink">Flickr.com</a>)</em>
Biblical law made no distinction between body and mind: Both had to be pure if the tribe was to avoid fire and brimstone from God above. When a man had a wet dream, the bed in which he slept became defiled, the bedclothes unusable until scrubbed, and any clay pots touched by the man were considered so filthy they had to be smashed to bits. This process would continue for a week, after which the hapless wet dreamer was required to seek out a priest to help him make a sacrifice of doves or pigeons and beseech God's forgiveness. <em>(Photo via firearcade on <a href="http://www.flickr.com/photos/artistgroup/5192546521/sizes/z/in/photostream/" target="_hplink">Flickr.com</a>)</em>
In ancient Mesopotamia, men were almost never punished for cheating on their wives. Married women who took lovers, on the other hand, were subjected to the earliest known death penalty law. Many adulteresses were impaled in public on long poles, but not before they were publicly humiliated, such as having their hair shaven and having a cord bored through their noses and being led through town like animals.
Husbands in ancient Greece and Rome had several options to exact vengeance against men who seduced their wives. Greek husbands were allowed to shove objects such as spiky fish or radishes into their rivals' anuses. Rome allowed this, as well, but also permitted aggrieved husbands to rape their wives' lovers. The idea was to degrade the seducers by making them into "women" and thus ruining their social standing. <em>(Photo via clayirving on <a href="http://www.flickr.com/photos/clayirving/2683140242/sizes/z/in/photostream/" target="_hplink">Flickr.com</a>)</em>
For 1,000 years, Rome's highest priestesses, known as the Vestal Virgins, enjoyed more privileges than any other females. But if they had sex, the safety of Rome was thought to be put at risk. When Rome lost a big battle or disaster struck, people often concluded that a Vestal must have been active in bed. A pleasure-loving Vestal was buried alive in a small, furnished room. As soon as she was put underground, attendants sealed the chamber with stones and spread earth around so no trace of her remained. <em>(Photo via strollers on <a href="http://www.flickr.com/photos/strollers/146813196/sizes/z/in/photostream/" target="_hplink">Flickr.com</a>)</em>
Medieval Christian doctrine prohibited sex between husbands and wives during the first three days of marriage, as well as Sundays, Wednesdays, Fridays, and Saturdays, the three Lents, the weeks following Easter, the days preceding the Pentecost, the two months around Christmas, and many other holy days, not to mention during a woman's pregnancy, lactation, or menstruation. At best, that left about four days per month. Even then, sex was restricted to nighttime encounters with no fondling or unusual positions. Oral and anal sex were punishable by up to 25 years of fasting and abstinence.
The law has punished sex between Jews and Christians throughout European history. In 1222 an Oxford deacon was burned to death on a charge of bestiality for marrying a Jewish woman. At about the same time a Parisian man who had fathered children with a Jewish woman was also burned. "Coition with a Jewess," said the judge, "is precisely the same as if a man should copulate with a dog." Jews were also forbidden to visit Christian prostitutes. The city of Avignon threatened Jewish men with the loss of a foot for walking into public brothels. <em>(Photo via burrowphotography on <a href="http://www.flickr.com/photos/22886639@N08/5888289895/sizes/z/in/photostream/" target="_hplink">Flickr.com</a>)</em>
Women and male homosexuals have always been on the wrong side of the law, but female-female sex was often difficult for lawmakers to understand. While the Italian town of Treviso required that lesbians "be tied naked for a full day to a stake ... and then burned," the Inquisition did not punish female-female sex unless the women used an "artificial instrument" in bed. The last lesbian execution in Europe took place in Germany in 1721, in which a woman was burned to death after adopting no fewer than nine separate male identities and using a large leather contraption to satisfy her credulous wife.
After the Civil War, when racial tensions in the American South ran high, a man's dark skin was proof enough that he was a rapist. As one court put it, no black man could assume that a white woman "would consent to his lustful embraces." Between 1700 and 1820 more than 80 percent of the men executed in America for rape were of African descent; 95 percent of the females were white. Punishments for black rapists in the South included, in addition to the occasional castration, being burned alive and decapitated, followed by the display of the severed heads on a pole.
Chinese females were thought to carry deadly germs that infected the white population. A doctor's report to Congress warned: "There are cases of syphilis among the whites that originated from these Chinese prostitutes that are incurable." In 1875 Congress barred the entry into the United States of all Asian women brought over for "lewd and immoral purposes." The law theoretically allowed genuine Chinese wives to immigrate while keeping out only sex workers, but in application it barred almost all Chinese women from entering the country. Out of 39,579 Chinese who entered the United States in 1882, for example, only 136 were women.
Starting in the 18th century the urge to masturbate was viewed as a dangerous mental disorder. Between 1893 and 1898 doctors at one Kansas mental asylum severed the testicles of 44 masturbating male inmates and performed hysterectomies on 14 self-pleasuring females. Said one Ohio doctor at about the same time: "That insanity exercises a peculiar influence on the sexual organs of women there can be no doubt. This can also be said of insanity in men."