Sex and Punishment

No, this book is not an imitator of Fifty Shades of Grey. Sex and Punishment: Four Thousand Years of Judging Desire is a history of laws about sexual relationships. The author is a lawyer, which explains the case law perspective, and a journalist, which explains the easy readability of what could be a very dry legal history.

The earliest case concerns a woman named Nin-Dada, who lived over four thousand years ago in Nippur, a Holy city that was then thousands of years old. Her husband, an important priest, was killed by three men. She knew, but did not report the death. The case was important enough that the details were recorded multiple times. The issue before a nine-member judicial assembly was what crime she had committed and how she should be punished.There was no evidence of adultery, but in that society failure to report crime was itself a criminal offense. The surveillance state is nothing new: Barmaids in Mesopotamia were legally required to listen in on their customers conversations. Nin-Dada’s defenders argued that she, a mere woman, was too intimated by the killers to report the death. The assembly ruled that Nin-Dada’s failure to report her husband’s death could only be due to her adultery with one or more of the killers, and she was sentenced to death.

Many societies punish female infidelity, regardless of a woman’s role in it. Even if a woman is raped, she might be punished. This sad fact should not be new to anyone. What was new to me, thanks to this book, was that Spartans did not care about female infidelity. Spartans believed that women could not be expected to remain faithful while their husbands were in military units. This was not assumption of weakness or concern for women’s pleasure. The goal was to encourage women to produce new citizens even while their husbands were away. It was also socially desirable for infertile couples to share partners, again to ensure a supply of healthy citizens.

Sex and Punishment makes is clear that there is no sexual act which has not been brutally punished in one society, and ignored or even celebrated in another. Distinctions and extenuating circumstances come and go. Rape was long seen as a crime of property, which among other problems meant men were free to rape their wives, and servants and slaves (of both sexes), but in some societies, a slave who bore her master’s children was automatically freed when he died. Homosexual acts between men could have very different meanings depending on whether the participants were active or passive. Prostitution was generally tolerated and sometimes a liberating lifestyle for women. At a time when prostitutes had very few legal rights, the courts would hire them to investigate claims of impotence in divorce cases.

Laws and court cases don’t tell us everything about a society, but they give some insight into the values, and what people are doing. Some medieval penitential handbooks for priests declared that man who has anal sex with his wife commits a greater sin than a man who has sex with a pig; and a woman who performs oral sex on a man commits a greater sin than a woman who kills a man. One can only conclude that some people are doing these things, and other people think they should not. Sometimes the justification is religion, sometimes it is maintaining social order; more recently it is science, or at least presented as science.

Berkowitz avoids drawing any conclusions about whether modern laws are better. In fact, he notes “A person violating the shifting rules of sexual conduct in modern Western societies will not be accused of witchcraft, but that is often just a matter of terminology.” As examples, he mentions the prosecutions and persecutions of Dominique Strauss-Kahn and Roman Polanski. I happen to think it is a good thing that we no longer permit the rape of servants and children (and wives), but perhaps I am just accepting the prevailing attitudes of my time, as people have been doing for thousands of years.

If there was any doubt, this history shows that laws concerning sexual acts and relationships rarely have the desired effect, and may make things worse. Berkowitz notes the population decline in Europe from 500 to 1000 A.D coincides with the strict anti-sex position of the church, and also notes that the raping that accompanied colonial conquests occurred in a context of sexual repression at home and promises of sexual abundance in the new world.

It also becomes apparent that the enforcement of sex laws, and the punishments ordered, are often a means to achieve other ends, relating to money, power, or politics. The scribes who faithfully recorded the details of Nin-Dada’s trial never noted why her husband was killed, nor confirmed that the punishment was carried out. (If they did, the records have not been found, and probably never will: The remains of Nippur were looted and destroyed during the US-Iraq war of 2003.) It’s not hard to imagine some palace intrigue that required the priest and his wife to be eliminated, in different ways. Think of Bill and Hilary Clinton, for example.

Berkowitz stays entirely within the traditional Western Civilization path, without explanation or justification. This is not unreasonable, as he is writing from and for that audience, and the book is already 400 pages, but some acknowledgement of other traditions, or an explanation of why he limits himself to that path, would be appreciated. The book also suffers from occasional redundancy in the later chapters, though in any historical work there are sometimes conflicts between the chronology of events and biographies of key persons.

Notes and a generous bibliography add to the authority and value of this book, and for those who don’t buy the eBook or are otherwise leery of keyword searching, there is a good (but not great) index. More information about the book is available at its site:

The book ends somewhat abruptly, after the case of Oscar Wilde. Berkowitz explains in the introduction that he chose to end there so that “the noise of our most recent century would [not] drown out the voices of our ancestors.” This is a wise choice. We are generally aware of the glaring hypocrisies and other problems with our current sex laws. Sex and Punishment shows that these challenges and related moral panics are nothing new. We would be wise to remember that.