Sex and Punishment

The history of Western civilization isn't just a saga of the rise and fall of great empires and nation-states, as many of us were instructed in freshman survey classes. It's also, as San Francisco attorney and writer Eric Berkowitz reminds us in this fascinating volume, a history of sex, or more particularly a history of how sex has been regulated, promoted, celebrated, and perhaps most of all, punished over time.

The author opens the first chapter with a 4,000-year-old homicide case brought against the allegedly adulterous wife of a Mesopotamian high priest from the city of Nippur accused of and ultimately executed for failing to avenge her husband's murder. "[S]ex was all over the case," says Berkowitz. Clearly, human beings have long struggled with the question of what types of sexual interactions should be permitted and what kinds should be prohibited. Adultery, incest, rape, same-sex relations, underage sex, bestiality, you name it - all have been the subject of vigorous legal scrutiny through the ages. And all, Berkowitz shows, have been treated differently in different eras and different places. What was verboten in one locale may not have been regarded as even slightly criminal in another.

Take incest, for example. The Babylonians treated the practice as a taboo and a source of contagion and punished it with banishment, drowning, or burning. But in ancient Egypt, sex between family members wasn't just tolerated but was actively promoted among both royal and plebeian orders as a means of safeguarding familial bloodlines.

Ditto for homosexuality. In classical Athens and much of the Greek world, Berkowitz writes, authorities were "dazzlingly permissive" in their attitude toward sex between men, often lionizing the "masculine glory" of the active partner. Hebraic culture, by contrast, labeled homosexuality a crime against nature on a par with murder. But in England and many Mediterranean countries of the late Middle Ages, same-sex unions known as affrèrements were recognized as an alternative to marriage. Subsequently, of course, the custom was banned, and homosexuality came to be widely and fiercely punished throughout Europe and the United States.

Berkowitz, a former legal editor of the Los Angeles Daily Journal, writes that he began his research for the book as a much broader study of Western law. But as he reviewed the first law texts from the Near East, he discovered that the earliest lawmakers and those who followed were preoccupied with sex.

Shifting the focus of his inquiry to those preoccupations, Berkowitz divides Sex and Punishment into eight chapters, commencing with an overview of the sex laws of Mesopotamia. Hammurabi, it turns out, wasn't concerned just with eye-for-an-eye punishment for crimes of mutilation but also gave careful thought, among myriad sexual issues, to the appropriate punishments for wives who stole from their husbands or denigrated them in public (they were often reduced in rank to slave status while their spouses were permitted to remarry).

Other chapters tell the stories of ancient Greece and Rome, the Middle Ages, early modernity, the New World, the 18th century and finally the 19th, culminating in the tawdry prosecution and imprisonment of the renowned Irish writer Oscar Wilde for his indiscretions with a young nobleman. Throughout, Berkowitz features actual case histories of offenders who, like Wilde and the unfortunate wife from ancient Nippur, ran afoul of prevailing laws and mores.

The net result is a book that while ambitiously broad in scope and dense in documentation is also well-paced and lucid, in keeping with Berkowitz's considerable journalistic skills.

Unfortunately, the book concludes with Wilde's case and the late 1890s. Today's raging sex issues - such as the controversies over gay marriage and the alleged rape of a hotel maid by Dominique Strauss-Kahn, the former head of the International Monetary Fund - are mentioned occasionally, but only for the light they shed on the past. A more detailed discussion of the contemporary scene, Berkowitz writes, will require another volume. Let's hope he's already hard at work producing it.

Bill Blum is a freelance writer and retired administrative law judge based in Los Angeles.

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