review of Sex & Punishment by Eric Berkowitz (The Westbourne Press)

When publisher Lynn Gaspard announced in mid-January that Saqi Books - founded in London in 1983 - was to launch a new non-fiction imprint to be called the Westbourne Press, she disclosed that its first title would be Sex and Punishment: 4000 Years of Judging Desire by Eric Berkowitz. The book, published a few weeks ago, has proved a good choice as the new imprint's debut title. It fits well with Gaspard's ambition that the Westbourne Press should be “a by-word for topical and engaging writing", with titles that "challenge our worldview and spark debate".

Berkowitz's 368-page book is a work of encyclopaedic scholarship, written with wit and relish and crammed with fascinating detail. It is by turns erudite, amusing, bizarre and horrifying. Its illustrations include an etching of a fearsomely spiny fish. The caption reads: "In ancient Greece and Rome, the husbands of adulterous women had several options. Most of the punishments allowed a husband to shame his rival by inserting foreign objects, such as spiky fish and radishes, into his anus."

One thing to emerge from the pages of Sex and Punishment is that again and again in the history of Western sex law it has been the relatively less powerful - women, minors, homosexuals, Jews, the poor, blacks, colonised peoples - who have suffered most from the effects of sex legislation, and punishments.At the same time, violations of sexual law have been the downfall of many a famous person.

Sex and Punishment came garlanded with glowing previews, and since publication has received a stream of enthusiastic reviews. The high-profile British classicist Professor Mary Beard of Cambridge University, who is quoted on the cover, says it is “a wonderful exposure of the illogicality of so much legislation that attempts to regulate sexual activity.”

Eric Berkowitz is a lawyer and journalist living in San Francisco. His investigative journalism has appeared in the Los Angeles Times and the LA Weekly, and he has been an editor of the West Coast's premier legal publication, the Los Angeles Daily Journal. He has a public interest legal practice, representing domestic violence victims and homosexuals seeking political asylum in the US.

The idea of writing Sex and Punishment came to Berkowitz when he was conducting research for a work he originally conceived of as a tracing of Western law generally, using colourful 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," Berkowitz writes.

"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." Sex was sometimes used as a punishment in itself: for example an Assyrian rapist's wife was ordered to be raped by the victim's father as punishment for her husband's crime.

Eric Berkowitz

Berkowitz realised 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."

Sex and Punishment begins four millennia ago in Mesopotamia, where the first-known written accounts of sex-related cases were inscribed in cuneiform script on clay tablets. Adultery was harshly punished: a disloyal wife who had plotted against her husband might be punished through being impaled on a long pole, dying in public slowly and agonisingly. The book ends in the late 19th century, when Britain was convulsed over the trial and imprisonment of Oscar Wilde for "gross indecency" with one of his young male lovers. There was a similar anti-homosexual current in France: "As in England, the French public's special ire was reserved for upper-class men who preyed upon their young inferiors. When one was caught, newspaper sales soared on a wave of middle class and moral superiority."

Berkowitz chose to close his book with the 19th century because he feared that if he carried on much beyond "the noises of our most recent century would drown out the voices of our ancestors." In an interview with Salon magazine he said: "If I had continued the last chapter would have been at least 450 pages long. I'm working on volume two of the book, and I'm deliberately feeding this one with contemporary issues. But you can't help but make associations, and it's valid to do so."

The first chapter of the book, 'Chaneling the Urge: The First Sex Laws'  draws on examples from Mesopotamia, Egypt and the wider Near East to show how all ancient civilisations were intent on controlling people's sex lives. Subsequent chapters cover Ancient Greece;  Ancient Rome; the Middle Ages; the Early Modern Period (1500 to 1700); the New World of Sexual Opportunity (in the Americas and Caribbean);  the 18th Century: Revelation and Revolution; and the 19th Century: Human Nature on Trial.

Berkowitz considers that it was around 9000 BC - some 185,000 years after the advent of Homo sapiens - that the link between sexual intercourse and pregnancy was confirmed. He suggests that the first sexual prohibitions could have been Palaeolithic taboos against intercourse with menstruating women. As time passed men's fear of women often evolved into outright hostility, with women seen as dangerous and filthy during their periods. "No one took menstrual fear further into the realm of obsession than the Hebrews."

Over the centuries menstrual blood was incorporated in recipes for sex potions. In the Middle Ages some European mothers collected and saved their daughters' first menstrual blood and used it eventually in aphrodisiacs for their sons-in-law.

Another prehistoric sexual taboo banned incest, and this probably led to the first formal law of any kind. This taboo was widespread amongst ancient cultures. The Babylonians punished it with banishment, drowning or banning. An innocent victim of incest would also be killed. And yet, although incest might appear to be the first, and also the one universal, sexual taboo "no one told the peoples of ancient Hawaii, Peru, Mexico, and especially Egypt and Persia." Incest was deeply embedded in ancient Egyptian culture -  in the creation myth of Isis and Osiris, in the marriages of Pharaohs to their sisters, half-sisters and daughters, and among Egyptians of all ranks.

Female virginity was a prized commodity in the ancient world with laws to protect its "male owners" in Mesopotamian culture and then under the Assyrians, and according to the Torah.

The Cully Flaug'd by Marcellus Laroon II; c 1700 © The Trustees of the British Museum. "The British loved their flogging. Whipping skills were part of any good prostitute's repertoire and domestic violence was generally tolerated by the courts, unless it reached "gross and unnatural" proportions."

Berkowitz repeatedly points to connections and parallels between sexual practices and laws in different eras, and between historical times and the present day. 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."

Different eras have had different sexual obsessions and fears. In the 18th century Swiss doctor Samuel-Auguste Tissot named his 1760 anti-masturbation blockbuster book L'Onanisme after the biblical figure of Onan who, in the book of Genesis, "spilled his seed on the ground" rather than complete the sex act with his widowed sister-in-law. God struck Onan dead.

Tissot and like-minded doctors regarded semen as "the essential oil of the animal liquids" and claimed that masturbation would lead eventually to madness, sickness and death. Tissot's bestselling book used quack science to back up the traditional religious injunctions against  masturbation. He was the first major standard-bearer for the 150-year age of "masturbatory insanity" which lasted until after the First World War.

"Treatments" for onanism sometimes involved surgery. Between 1893 and 1898 doctors at a Kansas mental asylum severed the testicles of 44 male inmate masturbators, and carried out hysterectomies on 14 self-abusing females. This was part of a wave of forced sterilisations that took place in the US for around 100 years from 1850 - with 83,000 people sterilised, supposedly to prevent crime and improve the human race. Black males were a particular target.

The outlawing and punishment of male homosexuality down the ages is a theme that repeatedly emerges of Sex and Punishment. There were also measures against lesbianism at various times, though the authorities and judiciary found it harder to get their heads round female-on-female activity.  In a celebrated case, in 1811 Marianne Woods and Jane Pirie, the unmarried co-mistresses of a Scottish boarding school, were ruined after being accused of "improper and criminal conduct" with each other.  They sued Dame Helen Cumming Gordon for libel; it had been her Indian-born granddaughter who reported sexual congress between the two women in a bed the girl was sharing with Pirie. Woods and Pirie won their case. Berkowitz says this was not because they did not sleep together or love each other intimately  - which they did - but because "the judges could not accept that two hard-working middle class women such as these could possibly have had sex with each other." And beyond this, a world in which women satisfied themselves without the need of men was impossible to entertain. Lillian Hellman's 1934 Broadway play The Children's Hour (banned in several US cities) was based on the case.

Berkowitz argues that the experiences of the distant past help illuminate the issues of the present, especially in relation to sex and the law. Regarding the furore in the UK, US and elsewhere over gay marriage "with all participants in the debate claiming to have history on their side, it is 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'."

Berkowitz often refers to 20th and 21st century events, such as former US President Bill Clinton's affairs with Monica Lewinsky and Paula Jones and his subsequent denials. Berkowitz contrasts Clinton's behaviour with that of the ancient Greek statesman and general Pericles. In the 5th century BC Pericles tearfully pleaded with a jury to acquit his beloved courtesan mistress Aspasia who was on trial for sexual and other offences. His pleas succeeded. "It is virtually impossible to imagine a present-day leader pleading with a jury to show mercy to his mistress, much less acknowledging his love for her," Berkowitz says.

Of former IMF managing director Dominique Strauss-Kahn's allegedly violent sexual encounter with immigrant Guinean maid Nafissatou Diallo in a New York hotel in 2011, Berkowitz writes that it "quickly became an international incident in which the limits of class privilege were much discussed, particularly in France."

The question of underage sex was one of the most explosive issues in 19th century sex law. In England there were influential pressures against further raising the age of consent, after its increase in 1875 from 12 to 13 (efforts at that time to increase it to 14 had been defeated.)  Berkowitz says that for English legislators the idea of jailing men who took young girls for pleasure made no sense. "For centuries young girls - especially maid and preadolescent prostitutes from the lower classes - had been theirs for the taking."

As so often, an imperial power did not apply its own law in its colonies; the British cared little about the phenomenon of child brides in India. In India the age of consent was raised from 10 to 12 only in 1891. Prior to this, there had been the much-publicised case of a "Hindoo lady", Rukhmabai, who had been married at 11 in 1876 but refused to live with her 19-year-old husband. He took the case to the Bombay High Court, and only dropped it when the girl's stepfather paid him 2000 rupees to drop the suit. The case was a cause célèbre and divided British opinion. But it was only after the British media reported in 1890 that an 11-year-old Indian bride had been literally "raped to death" by her 35-year-old husband that the law was changed. Marriage at 10 was still permitted, but consummation could not take place until the girl was 12.

'The Monk in the Cornfield; making love to a woman 'c 1646  - etching and drypoint by Rembrandt © The Trustees of the British Museum. "During the Reformation, Catholics and Protestants commonly hurled sexual slanders at each other. The Catholic priesthood often got the worse of it, as Protestants attacked what they viewed as the myth of priestly celibacy. Here, a monk is depicted as taking unholy liberties with a woman in a cornfield."

One of the most notorious 20th century cases of underage sex was that of film director Roman Polanski, arrested in 1977 for the statutory rape of a 13-year-old girl. He eventually pleaded guilty, under a plea bargain, to unlawful sex with a minor. Polanski fled the US and went on the run. In 2009 he was arrested by the Swiss authorities at the request of the US, but he was later released.

Berkowitz says that had Polanski been arrested a century earlier the law would have looked the other way. California's age of consent in the 19th century was 10 as it was in most other states of the union - and in Delaware it was only seven. It was raised to 14 in California in 1889.

The 19th century saw efforts to regulate prostitution in the face of the rise in sexually transmitted diseases, often spread by soldiers returning from war. The harsh measures that were introduced were often deleterious to women, but left men untouched. In France all females suspected of prostitution, sometimes as young as 10, had to submit themselves for savage internal inspections; the metal instruments used may actually have spread disease.  In Vienna police embarked on a hunt for "hidden prostitutes". Such systems were wide open for corruption.

Britain's Contagious Diseases Act (CDA) of 1864 was designed to regulate prostitution, particularly in view of the rise in venereal diseases in the Crimean War. One out of three soldiers had a venereal disease. The act allowed for forced genital examinations of females and the forced incarceration of those suspected of being infected prostitutes. The CDA was abused, and it "became clear that almost any woman could be processed as a prostitute, with all the shame that entailed." Working class and poor women were particularly badly affected.

As in other European countries, the act led to the police blackmailing and intimidating the blameless. "Droves of innocent women found themselves ensnared in a system that robbed them of their freedom and reputations."After a 13-year campaign led by feminists including Josephine Butler the act was suspended in 1883 and repealed in 1886. The women's campaign against the CDA was a significant factor in the development of British feminism.

Sex and Punishment pays attention to the parallel evolution of pornography and censorship. Erotic imagery is ancient: sexual depictions go back as far as the estimated 35,000-year-old "Venus" figurine carved from ivory found by archaeologists in Germany in 2008. Berkowitz quotes researchers as saying that the figurine's oversized breasts, ample hips and clearly defined vagina showed that "ancient humans had sex on their mind".

Sexual images were not forbidden in the ancient world. Scattered around ancient Athens there were plenty of statues of Hermes boasting an erection, and ancient Rome was full of sexually explicit writing and pictures, but these were single images. The arrival of mass printing techniques produced an explosion in the availability of pornography at the end of the 15th century. The wide availability of pornography led to secular and religious authorities trying to control and punish it. By the mid-16th century there was tough censorship of sexual material.  Sixteen hardcore drawings by the painter Giulio Romano  were reproduced by the engraver Marcantonio Raimondi for mass circulation in 1524. As a punishment Raimondi was incarcerated in a Vatican prison for more than a year, until the satirist and writer Pietro Aretino interceded with the Pope on his behalf. Aretino then proceeded to write 16 sonnets to go with the engravings, published as Aretino's Postures  in 1537.

Berkowitz maintains that in the same way the breakout success of Deep Throat defined the pornographic film explosion of the 1970s, Aretino's Postures represented the apogee of 16th-century mass-produced obscenity. It had many imitators. In 1599 Aretino's Postures was added to the Vatican's first List of Forbidden Books, which also included works by Luther, Boccaccio, Kepler and Machiavelli. The banning of Aretino's works only enhanced their attraction, and they proliferated.

Questions around the criminalisation of pornography have persisted, and are given new dimensions with the development of new means of recording, storing and distribution. The so-called "extreme porn" trial of openly gay barrister, magistrate and London City Hall high-flier Simon Walsh at Kingston Crown Court, London, earlier this month put the focus on the criminalisation of the possession of images of sexual acts that are not themselves illegal, but that are "likely to cause serious injury". (During the trial his lawyer was allowed to send Twitter messages; it is thought this was the first-ever time that a British lawyer was given special permission to tweet during a trial).

Walsh  had been charged with having on his computer five images of anal fisting and the insertion of glass tubes into the urethra. Three of the pictures had been taken by Walsh and his friends. These activities may be a minority taste, but they are not a criminal offence. However, they were deemed by the prosecution as "likely to cause serious injury". Walsh denied possessing extreme pornography according to this definition. Walsh was also charged with having an image of a naked underage boy on his computer, but he said he had never requested or looked at the image.

The jury swiftly acquitted Walsh on all charges; regarding the image of the supposed underage boy  they decided it was in fact the image of a man in his  mid-20s, as the story accompanying the image e-mailed to Walsh had said. Despite Walsh's acquittal on all charges the trial has been very damaging for him and it is uncertain whether his career will recover. That the case was every brought in the first place brought much outrage and criticism of the Crown Prosecution Service.

The development of the internet and new forms of communication is just one area in which legislators are having to try to work out and apply appropriate sex legislation to meet changing circumstances.  Berkowitz will certainly be a busy man as he tracks the developments in 20th and 21st century sex law in writing the follow up to Sex and Punishment.
review by Susannah Tarbush