By Estelle Cooch
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Sex and Punishment

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Eric Berkowitz
Issue 370

If you’re one of those people who gets annoyed when someone next to you on public transport starts reading over your shoulder, then this book is not for you. Sections entitled The Thrust of Athenian Sex Law, Miss Muff and Inspector Foucault, and Groping toward Modernity prove Eric Berkowitz to be quite the cunning linguist. At no point does the author (for want of another phrase) beat around the bush.

But if you’re someone who can get over the fact that descriptions of affectionate and intimate relations between Roman slaves could be a page away from a human tryst with a goat, then now is the time to jump into bed with Sex and Punishment.

The book spans 4,000 years of sex and the authorities’ attempted regulation of it. It ends in 1895 with the trial of playwright Oscar Wilde. But a book that could probably sell just as well crammed with smut and crude historical anecdotes, instead quickly becomes a polemic against the barbarity of empire and a call for bottom-up resistance to state interference in sexual relations.

Although the subject of this book may make readers think of French philosopher Michel Foucault’s work The History of Sexuality, Foucault is mentioned only four times throughout. He doesn’t seem to be an overbearing theoretical influence on the author. From the start Berkowitz, who is a lawyer cum journalist, emphasises the historical connection between property relations and sex. Before the biblical period, he argues, sex law had “nothing to do with morality or guilt”. The main concern was always protection of property.

Safeguarding property
Consequently, as has been well documented, same-sex relations were not viewed as taboo – providing they had no impact on the property of those who were married. Berkowitz notes that the earliest Athenian sex laws had only two aims: safeguarding the participation of men in public life, and ensuring fathers could leave property to their legitimate sons without complication. This attitude was smoothly summed up in Plato’s claim, “A love affair in itself is neither right nor wrong, but right when it is conducted rightly and wrong when it is conducted wrongly.”

Indeed in ancient Sparta there were few concerns about sex outside of marriage. Because most men spent considerable time in military units it was impossible to expect women to maintain monogamous relationships. Marriage was viewed as an institution meant to deliver warriors to the state – not heirs to the father.

But unlike similar books considering the history of sexuality, Berkowitz does not view such legislation as abstract from context – or indeed resistance. On describing a crackdown on the “sexual promiscuity” of Roman women, he quotes the poet Juvenal on the events following a temple being erected to the goddess of chastity: “Did you ever wonder why some women make crude remarks and lewd gestures as they pass the Temple of Chastity? That’s where they stop every night to relieve themselves – and piss on the goddess. Then they strap a phallus on the statue and take turns riding it.”

When in Rome…
The chapter, Imperial Bedrooms, contains a fascinating discussion of the growing sense in Ancient Rome that the sexual promiscuity of women would lead to its demise.

In 195 BC a debate broke out that penetrated every corner of the Roman Empire. Under the Oppian Law female ownership of gold had been limited to half an ounce, with the rest going to the treasury. Women were also barred from wearing expensive clothes and travelling in carriages. But after increasing protests the Roman Senate, fearing that the situation could get even more out of hand, repealed the law. Berkowitz describes how the “mob, growing for two days, and swollen by women pouring in from nearby towns” had jeered and waited outside the Senate building.

Before Christianity reached Rome marriage had even begun to fall out of fashion. Divorce was easy, families were small and sex outside marriage (even within the household of a spouse) was generally seen as normal. It was only as Rome’s imperial power began to deteriorate that fears about the sexual lives of its inhabitants were ramped up. It is no coincidence that the first law against homosexual relations emerged in 533 AD. The ruler Justinian the First had just faced some of the most major riots to rock Rome and used sexual regulation to try and turn the population against each other.

Although Berkowitz himself never makes the link, it is clear that the role slavery played in production in ancient Greece and Rome meant that sexuality was largely dissociated from procreation. This allowed same-sex relations to occur with little regulation.

Not so rigid penitentials
As the book “gropes towards modernity” the regulation of sex becomes much more prevalent. The Germanic invasions which brought down the Roman Empire threw Europe into social and economic turmoil. But the famous “Penitentials” (a set of church rules concerning penance) of the early modern period were by no means rigid. Many penitentials simply allowed sinners to buy their way out of atonement.

And it was still not until 1563 that a formal marriage ceremony was required by a priest. Nor had divorce yet acquired anything like the stigma in Catholicism that it later did. Usually marriage was based on verbal consent and sealed with sex. In 1206 Pope Innocent the Third declared a marriage null after the woman said her vagina was too small to accommodate her husband’s penis. The pope ruled the divorce was valid and that both parties were free to find – literally – more fitting partners.

A potential shortcoming for the book would have been if it had joined the chorus of historians who now claim that imperial expansion was driven predominantly by male sexuality and the desire for an “enlarged arena of opportunity”. Such claims are led by the historian Ronald Hyam after his groundbreaking book published in 1990, Empire and Sexuality.

But Berkowitz does not fall into such a trap. He condemns unequivocally the raping of millions of women on slave ships and writes about the chilling abuses of black women and men on the slave plantations and in the colonies. None of this is divorced from the reason they were sent there – the drive to expand markets.

One particular capitalist, John Cleland, returned to Britain after a failed career in the British East India Company. Cleland became author of Fanny Hill, a landmark in early print pornography and one of the most banned books in history. But Berkowitz doesn’t claim Cleland as a pioneer of sexual freedoms or denounce him for writing a largely apolitical piece of cheap erotica. Instead he was purely a failed entrepreneur – still looking to make a bit of cash.

Freedom of conscience and cock
The hypocrisy of the ruling classes spills into every part of the book. Privately King Frederick the Second declared “in Prussia there is freedom of conscience and of cock” and personally had a number of long term homosexual relationships. But when it came to lower class men found in similar relationships the most brutal of punishments were meted out.

As the book nears the present it doesn’t become misty-eyed about the progress of capitalism. The connection between science and eugenics and the way that so-called scientific theories fed into racial segregation, particularly in the US, is laid bare for all to see. A section on forced sterilisation and the sewing up of a woman’s labia as punishment for masturbation are particularly harrowing. By 1937, two thirds of American states had compulsory sterilisation as law for interracial sex or sex between disabled people.

Sadly Berkowitz is intentionally Eurocentric. At points this is a shame. Further explorations of the long periods of sexual tolerance in the Ottoman Empire and across South East Asia would silence any western claims to progressive liberal attitudes towards sex.

Throughout Berkowitz smoothly straddles the divide between the explicit and the subtle, the ridiculous and the sublime. From the unfortunately named Thomas Hogg and Thomas Saddeler who were executed in the 18th century for sexually abusing a pig and a horse respectively, to the Catholic priests who oversaw same-sex marriages in the middle ages, there are plenty of surprises here.

After the worst historical sexual abuses have been described in explicit detail, we might be tempted to imagine that such things are only historical relics. But Berkowitz flings in recent facts that force us to reconsider. It was only in 2000, for example, that Alabama formally repealed its laws against inter-racial sex.

Sex and Punishment constantly reminds us not to be complacent about past victories – nor to rest until genuine equality has been won, from the barricades to the bedroom.

Sex and Punishment is published by The Westbourne Press, £17.99

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