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Sara Wheeler

Make Love, Not Law

Sex and Punishment: Four Thousand Years of Judging Desire
By Eric Berkowitz (The Westbourne Press 368pp 17.99)
Dying for it

This stimulating book examines the ways in which legal systems have attempted to regulate sexual activity over millennia, from the 'slow impalement of unfaithful wives' in Mesopotamia to the 'sterilisation of masturbators' in the United States. 'I have mapped out the story of Western civilisation', Eric Berkowitz boldly claims in his introduction, 'from the perspective of law and libido.'

A distinguished American lawyer-cum-journalist, Berkowitz arranges his material chronologically. The first cases, culled from cuneiform on shattered clay tablets, reveal ancient societies in thrall to gonads. The laws of middle Assyria (c1450-1250 BC) decreed that 'if in a quarrel a woman injures the testicle of a man, one of her fingers they shall cut off'. The action moves to the sexual mores of the pointy-bearded Hittites, through Greece and Rome, and onwards to the Middle Ages in Europe. Besides punishment for transgression, Berkowitz looks at legal provision for revenge. In the Greek Classical period the husband of an adulterous woman was permitted to insert a spiky fish into his rival's anus. The book includes a pleasant picture of the fish.

As Berkowitz often points out, what people do never changes, only behavioural norms, and the harmless fun of one society becomes the gravest crime of another. The catalogue of fun subject to continual reinterpretation by the baleful forces of law includes incest, masturbation, bestiality, sex during menstruation, boring old adultery, prostitution, transvestism, pornography (which came of age in the Early Modern period), and the cult of virginity. As for homosexuality, the Theban infantry had a gay unit that fought nobly at the Battle of Chaeronea in 338 BC, and the issue only moved centre stage in the Christian era. The level of savagery sodomites faced in the Middle Ages beggars belief - Edward II's lover, Hugh le Despenser, had his balls and penis burned off publicly and, in case that wasn't enough, was then executed. Overall, Christians come out of the story badly, 'with their insistence on the conflict between the body (which craves sex) and the spirit (which sex destroys)'. Berkowitz often returns to this theme. 'From the reign of Emperor Constantine to the present,' he writes, 'the Christian notion that sexual love brings spiritual death has been the cornerstone of Western sex law.'

This is an excellently researched, almost scholarly book that draws on a wide range of sources from Herodotus to St Augustine (who f***ed the living daylights out of half of Carthage and Milan before declaring celibacy the way to go when he could no longer get it up) and on to Pepys and Foucault. All are properly credited. By backing up his material and selecting sources wisely, Berkowitz has achieved a perfect balance between case study and analysis, and between narrative and reflection.

Halfway through the book we reach the New World, where 'copious sex with supposedly insatiable native women was a key lure for libidinous European men to risk their lives crossing the oceans'. Back in England, in the eighteenth century, 'the whore ruled the age. She was worshipped, pampered, adored, and hated ... More than ever before or since, prostitutes were the objects of popular fascination ... limitless tableaux on which men painted their most intense aspirations.' This ambiguity towards the oldest profession runs through Sex and Punishment like a scarlet thread.

The supposed Enlightenment transition from religion to reason was patchy: in 1806 England hanged more sodomites than murderers, while fear of masturbation reached such a climax in Germany that men caught at it had their foreskins tied shut over their members and held fast with iron rings. At the same time, legislators became obsessed with the question of what age should be considered 'underage' for sex. Berkowitz judges this 'one of the most explosive issues in nineteenth-century sex law'. In Delaware, the age of consent was ten. Berkowitz stops on the eve of the twentieth century, correctly reckoning that, 'if I travelled much further into the present, the noise of our most recent century would drown out the voices of our ancestors'.

What all this amounts to, in most of the human cultures that have ever existed, is the male fear of and wish to subjugate women. I would have liked Berkowitz to spell this out. In the Greek era, men even perceived women as sperm receptacles without eggs of their own, as Aeschylus has it in Eumenides: 'She who is called the mother is not her offspring's/Parent, but nurse to the newly sown embryo./The male - who mounts - begets.'

There is much that is amusing in these pages, and Berkowitz retails the funny bits with a light touch. I don't suppose it sounds humorous to contemporary victims of forced marriages sanctioned by law, of condoned rape, of female circumcision - and of God knows what else happens to women in those countries existing in ethical midnight. In Ur Nammu in the third millennium BC the penalty for raping a slave girl 'was as trivial as a speeding ticket today'. Considering the recent case of the monstrous Dominique Strauss-Kahn, one wonders how far we have progressed.

This is a wonderfully well-written, well-organised and accomplished book. But it comes with a health warning. 350 pages of sex resulting in impalement or a barbed fish up the bottom may have a deleterious effect on the libido.


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Sara Wheeler's O My America! Second Acts in a New World comes out from Cape next March.


Royal Literary Fund


John Murray