SEX AND THE LAW
At the beginning of human civilization all laws were religious laws, i.e., they expressed the will of some superhuman authority. The spirits, the gods, or God wanted human beings to behave in a certain way and promptly punished any disobedience. The laws, therefore, practically enforced themselves.
The earliest known sex laws were no exception to this rule. Originally, there was no difference between sin and crime. Sexual offenders were both sinners and criminals, and their punishment was certain. Where human law enforcement was necessary at all, it merely carried out divine orders.
As a matter of fact, this was the prevalent view throughout most of human history. For thousands of years religious belief remained the foundation of all law. The first great lawgivers of the Old World, for example, still openly claimed to be instruments of a "higher" will. Hammurabi received his laws from the Sun-god, Moses was given the Ten Commandments by Yahweh on Mount Sinai, Mohammed had the Koran dictated to him by the archangel Gabriel.
Needless to say, these and various other "divinely inspired" legal codes differed rather widely from each other, especially in regard to sexual behavior. We also know that even some of Yahweh's sexual commandments changed or reversed themselves in the course of time (for example see Genesis 38; 8-10 and Leviticus 20; 21).
THE DIVINE ORIGIN OF THE LAW
The first great lawgivers of mankind claimed that their laws expressed a divine will.
Stone in the shape of an erect penis inscribed with the laws of Hammurabi which were inspired by the Sun-god. The relief sculpture at the top of the stone shows the god sitting on his throne instructing Hammurabi who stands before him. (Paris, Louvre)
Moses receiving the tablets of the law from Yahweh on mount Sinai. (9th-century Carolingian miniature)
Illustration from a Persian manuscript showing the archangel Gabriel dictating the Koran to Mohammed.
Still, when we compare the first historical attempts at sex legislation, we also find that they had at least one thing in common: They all covered both social and religious offenses. Sexual behavior was punished not only when it caused harm to other human beings, but also when it merely showed disbelief. Indeed, the latter offense usually carried a harsher penalty than the former. People were much more afraid of divine displeasure than of any personal injury.
Thus, sexual heretics could never claim to be socially harmless. Even if they endangered nobody in particular, they still posed an indirect threat to the community. Their very existence insulted God and invited his retribution. Therefore they could not be tolerated. Their persecution was a religious duty, and any measure taken against them was justified.
This was the basic philosophy of jurists from ancient to medieval times. In their opinion the main function of the law was to restore and preserve God's "natural order". In fact, over the centuries, the control of sexual behavior became the exclusive province of the church. Religion was the most influential moral force, not only in private, but also in public life.
At the beginning of the Modern Age, when the church lost more and more of its power to the secular state, the old prohibitions remained. All over Europe ecclesiastical courts were replaced with secular courts, penitentials with criminal codes, penance with criminal penalties, but the general approach to sexual deviance was the same as before. The state simply adopted the traditional moral standards and enforced them with all its might. Even "harmless", victimless deviants continued to be prosecuted. They just turned from religious heretics into secular "subversives". In the eyes of the law, they somehow still threatened the well-being of the nation.
It was not until after the American and French revolutions in the late 18th century that the state declared its complete separation from the church. This meant, among other things, that the sex laws could no longer directly be copied from the Bible, but had to be based on rational and empirical grounds. As a result, many sexual acts that once had been crimes were now found to be permissible. An "enlightened" citizenry escaped its former moral tutelage and won many new civil liberties. A certain "free sphere" of privacy and personal morality was created, and the law was told to stay out of it. These democratic gains were soon consolidated in the Napoleonic legal reforms which, directly or indirectly, reached most of Western Europe and Latin America. The United States, in their constitution, also proclaimed their independence from religious dogma. Congress was explicitly ordered to "make no law respecting an establishment of religion".
However, the Christian, or rather Puritan, stranglehold on American public life was not so easily broken. For a very long time the state continued to punish not only dangerous crimes, but also mere sins and victimless vices. It simply ignored the growing number of non-Puritans for whom these vices were, in fact, virtues, and who were now prevented from leading a full sexual life in accordance with their beliefs. Indeed, to this very day, when it comes to anything sexual, many American legislators still routinely forget the Constitution.
Fortunately; in recent years the general public has become more sophisticated, and thus it is beginning to understand that sexual freedom is as much a constitutional issue as religious freedom and freedom of speech, for example. A number of states have already liberalized their sex laws, and others are in the process of doing so. It seems, therefore, that, at least in this limited area, the promise of the American Revolution will finally be fulfilled.
These few observations are not meant to imply, however, that religion is the only possible obstacle to rational sex legislation. Even the strictest separation of church and state does not, by itself, guarantee sexual freedom for every citizen. After all, several modern, openly atheistic states, such as the Soviet Union, the People's Republic of China, and Cuba are as intolerant of sexual deviance as any medieval Christian kingdom. Among other things, these countries still prohibit "pornography", prostitution, homosexual acts, and cross-dressing, although none of these offenses involves any victims. Obviously, the prohibitions are now no longer defended on the old religious grounds. Instead, they are based on new ideological dogmas about "Western immorality", "capitalist corruption", or "bourgeois decadence". A closer study of these dogmas could probably discover their long-forgotten religious origin. Or perhaps the desire to create and then persecute heretics is so deeply ingrained in some societies that they use any excuse, religious or secular, to justify it. At any rate, even in our time, there is still much sexual intolerance in many parts of the world. The fight for universal human sexual rights is far from over. (See also "The Sexually Oppressed".)
The following pages briefly summarize the development of European and American sex legislation. In addition, they also offer some cross-cultural comparisons. Because of limited space, sex-related legislation, such as that concerning marriage, divorce, contraception, abortion, illegitimacy, venereal disease, etc. is not mentioned here. The discussion is restricted to laws which directly regulate human sexual behavior in the narrow sense of the term.
In order to understand the present English and American sex laws one has to consider their history. Some of these laws, in fact, are based on the beliefs and customs of primitive ancient peoples and have survived only through a series of historical accidents. Furthermore, unlike the law of continental Europe, for example, Anglo-American law does not yet fully reflect the modern separation of church and state, but continues to enforce a very specific medieval Christian morality. This is particularly surprising in the case of the U.S. which, in its constitution, proclaims complete religious freedom. Nevertheless, in the area of sexual behavior, the constitutional guarantees still wait to be realized. To this day, narrow Christian moral doctrines are legally imposed on the sexual behavior of American Moslems, Hindus, Buddhists, and atheists. Too many American Christians still refuse to accept the fact that, constitutionally, the U.S. is not a "Christian country", but is supposed to be home for all forms of belief and disbelief. Indeed, it can rightly be argued that many current American sex laws are unconstitutional. The following brief historical survey traces the origin and development of English and American sex legislation. Naturally, in the present context this survey can only be sketchy and incomplete. Even so, it will make the largely religious basis of present legal attitudes indisputably clear.
The Jewish Legal Tradition
The history of ancient Israel is the history of its struggle for national identity and survival. Surrounded and constantly threatened by "infidels", the Israelites made extraordinary efforts to preserve their "true" faith. All of their laws and customs have to be seen in this context.
Early Jewish sex legislation tried to protect "God's chosen people" from four major "evils": a population decrease, the violation of male property rights, the "contamination" with strangers and strange customs, and religious heresy. Thus, the laws encouraged marital coitus at the expense of all other sexual activity and prohibited various forms of nonreproductive sex that were common among neighboring tribes. The refusal to procreate indicated an antisocial attitude and offended the whole nation. Rape, adultery, and illegitimate pregnancies violated the rights of individual men who regarded their wives and daughters as their personal property and who demanded compensation for any "damage". Homosexual behavior and sexual contact with animals were associated with the worship of foreign gods. Thus, they were signs of idolatry or, as the Bible calls them, "abominations", i.e., crimes against Yahweh himself.
Naturally, in the course of time, certain specific sex laws were modified, and others were reinterpreted in the light of changing circumstances. Nevertheless, the general Jewish legal attitude towards sex remained unchanged even at the time of Christ. (See also "Sex and Religion, Historical Background".)
Early Christian Doctrines
The early Christians adopted most of the Jewish legal tradition. Officially, they still lived under the lenient laws of the "pagan" Roman empire, but in their private conduct they followed the stricter biblical standards. Indeed, the first great Christian missionary, Paul, had a very low opinion of man's sexual desires and advocated restraint wherever possible. This attitude was further developed by Augustine and other so-called Fathers of the Church whose views were openly ascetic. Finally, when Christianity became the Roman state religion, this new asceticism found expression in the criminal code. The Christian emperors Theodosius (390 A.D.) and Justinian (538 and 544 A.D.) passed draconic laws condemning certain sexual practices as relics of paganism. Especially the code of Justinian, which survived for nearly 1000 years in the Byzantine (i.e., East Roman) empire, was very intolerant of sexual deviance. For example, Justinian declared that heathen abominations like homosexual intercourse and sexual contact with animals cried out for God's punishment by storm, fire, famine, pestilence, and earthquake, and that the state therefore had the solemn duty to protect the land by executing all offenders. The execution consisted of burning at the stake or live burial, often preceded by torture and mutilation. Justinian's code was a landmark in Western legal history, and it had a great influence on the thinking of medieval jurists.
The Medieval Ecclesiastical Courts
England, Scotland, and Ireland became familiar with Christian legal doctrines through the work of missionaries. Anglo-Saxon law had never been organized into a code. The body of law was customary. Now, together with its new religion, the Christian church introduced a new legal system. English kings also began to enact new secular laws, and, for a long time, both legal systems existed side by side, mutually supporting each other. Eventually, the church acquired jurisdiction over all spiritual matters. Special ecclesiastical courts were set up which dealt with such offenses as heresy, blasphemy, witchcraft, and sexual deviance. These courts did not have the power to impose any secular punishment, however. Instead, they prescribed only a certain penance. By the same token, they were not bound by ordinary rules of evidence, but relied mainly on voluntary confessions. Offenders usually confessed their sins because they feared for their souls. An ecclesiastical court could save them from eternal damnation. The judges, in turn, felt obliged to consider not only concrete actions, but also mere sinful thoughts. The various kinds and degrees of penance were laid down in special books called penitentials, which today give us a fairly accurate picture of medieval ecclesiastical justice.
Generally speaking, the ecclesiastical attitude towards sex was extremely negative. Even coitus between husband and wife was severely restricted. For example, sexual intercourse was forbidden for 3 days after the wedding, during a woman's menstrual period, during her pregnancy, and for several weeks after childbirth. It was also prohibited on Thursdays (Jesus' arrest), Fridays (Jesus' crucifixion), and Sundays (Jesus' resurrection) as well as during official periods of fasting (40 days each before Easter and Christmas). Menstruating women were not allowed to enter the church. Fornication demanded a penance of up to 1 year, adultery for up to 7 years. Masturbation and involuntary orgasms during sleep were treated somewhat more lightly. However, homosexual acts and sexual contact with animals could require a penance of 22 years to life.
To modern minds it may appear strange that there should have been such a great difference between the penance for adultery and that for homosexual acts, for example. However, it must be remembered that, to the medieval mind, these sins belonged to entirely different categories. Nonreproductive types of sexual behavior were offenses against the "natural order" and therefore against God himself. By comparison, sins of "natural" lust, such as seduction, adultery, or even rape, which offended only other human beings, were much less serious.
Penitents usually were expected to dress in a white sheet and to appear barefoot and bareheaded at the church door. They had to carry a heavy candle and were marched down the aisle to the front of the congregation where they made a public confession. Finally, after several weeks or years, when the terms of their penance were fulfilled, they were given a written certificate. Offenders who either refused to confess their sins to the court or failed to do the prescribed penance were excommunicated.
It was perhaps inevitable that, over the centuries, this method of regulating deviance became largely ineffective. First of all, the sexual standards set by the church were utterly unrealistic. Secondly, many clergymen themselves openly flouted these standards. Thirdly, as the system became well entrenched, the act of penance was more and more often replaced with almsgiving and finally with the payment of a fine. This, in turn, set the ecclesiastical courts on a collision course with the secular government. After all, many spiritual offenses also caused real physical harm. Sins against God can, at the same time, also be crimes against people. For example, medieval lords were entitled to a special fee ("merchet") for allowing the daughters of their vassals to marry. If such a daughter ruined her chance for marriage by sexual promiscuity, the lord was cheated out of his fee. In these and similar cases, secular courts had always been entitled to impose fines as a compensation for damage. However, now that the church also collected money through its own courts, the offenders were often unable to make a second payment to the civil authorities or to their victims. As a result, the entire system of ecclesiastical justice began to be questioned.
Finally, when, during the Reformation, King Henry VIII became the head of the English church, he took over some of its jurisdiction and turned various religious offenses into secular crimes. Thus, homosexual acts and sexual contact with animals, for example, which before had required only penance, were declared to be felonies. Offenders were executed and all their possessions confiscated. Queen Elizabeth I even appointed a special Court of High Commission which punished moral and spiritual offenders with fines and imprisonment. This court, however, soon became completely corrupt and turned into a kind of Protestant Inquisition. Therefore it was abolished in 1640.
The Puritan Heritage
When Oliver Cromwell and the Puritans came to power in England, they greatly intensified the persecution of sexual deviants. Cromwell himself never tired of demanding more zeal on the part of prosecutors. In 1650 Parliament passed the so called Puritan Act "for the suppression of the abominable and crying sins of incest, adultery, and fornication, wherewith this land is much defiled, and Almighty God highly displeased." Thus, the religious basis of Puritan sex legislation was made unmistakably clear. The prescribed penalties were the same as those used in biblical times. For example, just as in ancient Israel, adultery was punished by death.
While the Puritan rule soon came to an end in England, it experienced a second flowering in America. The Puritan colonies of New England were, in fact, totalitarian religious states. Most of their sex laws were based on the laws of Moses. The Massachusetts colony, for instance, directly copied the Old Testament when it passed legislation demanding death for adultery, homosexual acts, and sexual contact with animals. Fornication posed a rather difficult problem, because the ancient Israelites had never condemned it as such. Nevertheless, Christians had learned to regard it as a grave sin. The Puritans eventually developed their own approach and specified various forms and degrees of punishment. Fornicators could be enjoined to marry, they could be fined, or they could be pilloried and publicly whipped as a warning example to others. Sometimes all three penalties were combined. In later, more lenient times it also became customary to force fornicators to wear the letter "V" (for Vncleanness) conspicuously displayed on their clothing. Punishment for adultery was then signalled by the letters "AD" or simply by "A." (See also Nathaniel Hawthorne's novel The Scarlet Letter.)
In spite of these strict laws and harsh penalties, however, sexual deviance remained quite common among the New England Puritans. Many contemporary reports leave not doubt that illegitimate births were frequent and that homosexual behavior was fairly widespread. This latter fact is, of course, hardly surprising, since the community concentrated its efforts on the prevention of all nonmarital heterosexual contact.
The sex laws in most states of the U.S. today still follow the Puritan model. As the American population moved westward across the continent, the New England penal codes were simply carried along and copied in every new state. Most settlers were content with preserving the legal traditions to which they had been accustomed on the East Coast. Unlike the inhabitants of the Old World, they were not interested in new legal theories or fundamental reforms. Western and Southern Europe had, in the early 19th century, liberalized their sex laws at the command of Napoleon I. The Napoleonic code, which legalized practically all consensual sex between adults in private, had an influence reaching well beyond the French national borders. It was either adopted or used as a model in Italy, Spain, Portugal, Belgium, the Netherlands, and all of Latin America. Thus, most of the world's Catholic countries entered the new Industrial Age with a sensible minimum of modern sex legislation, while the Protestant countries of Central Europe and North America remained tied to the past. Most of their ancient and medieval sex laws were preserved intact. The only real change was a gradual reduction of penalties. For example, while adultery continued to be a crime in Massachusetts, the death penalty was relatively soon replaced with a public whipping, a fine, and imprisonment. Then the whipping was omitted, leaving the fine and the prison term on the books. Finally, even these reduced penalties were considered too severe. However, instead of changing the law, the authorities simply ceased to enforce it
Another, even more telling example is provided by the case of New York which, unlike Massachusetts, at first did not have a law against adultery. Then, in 1907, a group called "The National Christian League for the Promotion of Purity" pressured the legislature into adopting such a law. From that time on, adulterers could be fined or imprisoned, or both. Nevertheless, almost from the start, there was virtually no attempt at enforcement. The situation was especially grotesque because in the state of New York adultery was the only recognized ground for divorce. Every year the courts routinely granted thousands of divorces on this ground, but also routinely failed to prosecute the guilty parties. It was not until a few years ago that this official exercise in legal hypocrisy finally came to an end when the legislators faced up to their initial mistake and repealed the anti-adultery law that they should never have enacted in the first place.
Unfortunately, to this day, the reform of antiquated sex laws has not made much progress in the U.S. The vast majority of states still insist on legislating and overlegislating morality and thus continue to create for themselves a host of unnecessary social problems. (For a more detailed discussion of some of these problems see below under "Current Sex Laws in the U.S.".)
The English and American legal approach to sexual deviance has always been unusually harsh. This becomes quite apparent when one studies the sex laws of other societies. Most of them are much more tolerant. Curiously enough, the experiences of these societies do not seem to be of any interest to Americans. Thus, it is not uncommon to find American legislators quoting the Bible in defense of stricter legal control, but virtually none of them ever considers the available practical record in other countries. Some of these countries have had only minimal sex legislation for more than a hundred years, and by now they know very well what does and does not work. Still most of the discussion in England and America, even among legal scholars, remains parochial, as if nothing could be learned from the experience of others.
Unfortunately, the scope of the present book does not allow for a detailed description of European, African, Asian, and South American sex laws. A very brief selection has to suffice. Nevertheless, the following summaries, inadequate and superficial as they are, may add at least some perspective to the discussion. All criminal codes listed here are those of modem, industrial nations.
The Soviet Union
It is rather difficult to summarize the legal controls of sexual behavior in the Soviet Union. First of all, the various union republics have their own penal codes, and these vary especially in their sex laws. Secondly, deviants of all sorts are often "corrected" without formal arrests and criminal trials. Instead, they may be subject to noncriminal sanctions. Although such sanctions can be quite severe, they do not define the deviant as a "convict" in the regular sense. Persons who are found to lead a "parasitic way of life", for example, may be resettled and forced to work in an assigned job for a certain period of time. Obviously, all of this allows for a great deal of discretion, and thus the criminal law may never be invoked.
Still, one can get a glimpse of the general legal attitude towards sex in the Soviet Union by studying the criminal code of the Russian Soviet Federated Socialist Republic, which is the largest of the 15 union republics. In this code the most serious sexual crime is rape. The law distinguishes between degrees of rape according to the force or violence involved. While simple rape may result in not more than a 3-year prison term, aggravated forms are punished much more harshly (up to 10 years). Gang rape and the rape of a minor can be punished by still longer prison sentences or even death. Child molestation is punishable by imprisonment for up to 3 years. The same offense "in perverted forms" carries a maximum penalty of 6 years. Homosexual acts between men are considered a serious crime. The punishment may range up to 5 years in prison. (The old Czarist law against male homosexual behavior had been abolished in the early days of the revolution, but was reintroduced in 1934. However, now as before, no mention is made of homosexual behavior between females.) There are further strict laws against the making and supplying of pornography (3 years imprisonment). "Pandering for a mercenary purpose" and "keeping dens of debauchery" may be punished with 5 years in prison, in addition, it is a serious offense to "draw minors into criminal activity", such as "begging, gambling, and prostitution".
The Scandinavian Countries
Norway, Denmark, and Sweden have for a long time closely collaborated in the field of administration of justice. Thus, the three countries have developed similar views on what sexual acts should be considered crimes.
Compared to the United States, there is not much legal control of sexual behavior. The most serious offense is rape which, under certain conditions, can be punished with life imprisonment. However, the law recognizes various degrees of rape, and thus in nonviolent and "statutory" cases, such as sexual intercourse with an insane or mentally defective woman, the penalty is much less severe. Sexual contact is punishable as child molestation if one of the participants is under the age of 15 (14 in Norway). Incest is defined narrowly as sexual intercourse between direct ascendents and descendents or brother and sister. It is considered a serious offense, although participants under the age of 18 may escape punishment. There are no laws against "fornication", "sodomy", or "crimes against nature". Adultery and sexual contact with animals are crimes only in Norway, but prosecutions are extremely rare. Homosexual acts are legal as long as they take place between consenting adults in private. (They are punishable only if one of the participants is under the age of 16.) Prostitution as such is also legal, although prostitutes may be arrested under the vagrancy laws and enjoined to find other employment. Lewd and obscene behavior in public is an offense. Obscenity in private, however, does not concern the law. The generally lenient Scandinavian attitude towards "pornography" is well known. Denmark has even lifted the few remaining restrictions and legalized all sexually explicit materials.
The Federal Republic of Germany
The West German sex laws are simple and few in number, comprising only ten paragraphs (§ 174- § 184) of the uniform national German penal code. The code refers to sex crimes collectively as "crimes against (a person's) sexual self-determination" and thus clearly expresses the underlying philosophy of German sex legislation: Sexual behavior is criminal if it interferes with other people's free and healthy sexual development and expression. Accordingly, the code punishes those who have sexual intercourse with partners under their care or authority, such as dependents, apprentices, students, prisoners, mental patients, etc. The seduction of a girl under 16 years of age is also punishable, although the case may be dismissed if the seducer is younger than 21 years. Sexual intercourse with children under 14 years of age is always a crime, and it is illegal to make "adult" pornography available to anyone under 18 years of age. Rape is punished according to the severity of the crime with imprisonment between 6 months and 5 years (more if the victim dies). Sexual intercourse under the threat of force or other threats and impositions carries a penalty of 3 months to 5 years or even up to 10 years imprisonment according to the circumstances. Prostitution as such is not a crime, although operators who provide more than just housing, pimps, and those who encourage prostitution can be punished by several years' imprisonment. There is no law against homosexual behavior between consenting adults. However, homosexual acts are prohibited with partners under 18 years of age, although offenders who are themselves younger than 21 years may go free. (The law here assumes that persons under 18 years are too young and impressionable to make an independent, rational decision for homosexual behavior.) Sexual acts in public can be punished with up to one year imprisonment or a fine. Exhibitionism is prosecuted only in response to a complaint. The sentence can range up to 1 year imprisonment, although it may be suspended if there is reasonable hope that the offender can be rehabilitated by psychiatric treatment.
In the 19th century the formerly isolated Japan was opened to Western influences and experienced fundamental political and social changes as a result of the so-called Meiji Restoration. In pre-Meiji Japan sex laws were comparatively few and lenient. Homosexual relationships were not considered shameful, but enjoyed a social recognition comparable to that known in ancient Greece. Prostitution also flourished openly in special entertainment districts which were by no means always as sordid as their equivalents in Europe or America. However, as Japan became more westernized, this traditional sexual freedom was more and more restricted. Today the Japanese criminal laws share certain negative Western attitudes towards sex, although on the whole they are still much less oppressive.
There are no laws against homosexual behavior, adultery, fornication, cohabitation, or sexual contact with animals. The encouragement of prostitution, pimping, and pandering are now illegal, however. Prostitutes can be sent to a "women's guidance home" for 6 months in order to be "protected and rehabilitated". Furthermore, there is a law against the public display and sale of "obscene" material. (The Japanese definition of obscenity is rather different from that of Western countries.) The most serious sexual offense is rape, which is punished according to the degree of violence used by the rapist. In simple cases it may carry not more than a 2-year prison term, but if the rape involves a child or results in serious injury or death, the sentence may be life imprisonment. The concept of "statutory rape" is unknown. Sexual molestation, i.e., an "indecent act" with a male or female person which involves force or the threat of force is punishable as "indecency through compulsion". Harmful child molestation (i.e., if the victim is under 13 years of age) can also be prosecuted under this statute. The sentence is usually severe (6 months to 7 years). "Public obscene behavior" carries a maximum prison term of 6 months. On the other hand, several sexual acts which could be considered extremely serious in the U.S. are treated as minor offenses in Japan. For example, a man who "exposes his body in such a way as to cause disgust to the public", or who "secretly peeps into houses, bathrooms, dressing rooms, or toilets" is simply punished with "detention and a minor fine." These acts are listed together with and treated like such offenses as trespassing, starting false fire alarms, and "frightening horses or cows and causing them to run away".