'Sex and Punishment': author and lawyer, Eric Berkowitz, on 4,000 years of judging desire

Many of the earliest sex laws, like those in the Old Testament, forbid men from having intercourse or even interacting with menstruating women. Why was menstruation so vilified by many early cultures? Why wasn’t it celebrated as a sign of fertility?

For a very, very long time, people did not make the connection between intercourse and reproduction. When men were confronted with a loss of blood from the same place where children are born and where men put themselves, I think it created confusion. It was a horrifying thing. The restriction of sex with menstruating women was probably a first step to imposing order on society and sexual relations, and perhaps an effort to appease the gods. It is a reaction to confusion. Many sex laws are a reaction to confusion.

When trying to explain sexual behavior, many evolutionary psychologists and biologists first look at how such acts may have evolved as adaptations that were beneficial to human survival. When studying sex laws and punishment throughout history, do you look at these laws as cultural adaptations designed to meet specific social needs?

Yes I do. That happens in a lot of ways when you talk about cultural adaptations. For example, the traditional obsession with female adultery as opposed to male adultery has logical roots in property rights. A man wants to know whether the intended heir of his property was his offspring or someone else’s. Monitoring a wife’s fidelity was a way of keeping a family and property organized.

In another sense, which I think is more important, cultures define themselves by their sexual rules. We define ourselves as not doing what other people do. If you go back to Leviticus as an intro to all the sex laws in Western culture, God tells the Jews, “Don’t do like they do in Egypt and the land of Canaan. Define yourself as having different sexual rules and mores.” In my opinion, the emergence of rules regarding homosexuality was a distinct effort by Jews and Christians to define themselves as different from the cultures surrounding them.

This is something we still do. Whenever we go to war, we always find a way to castigate our enemies as sexual perverts. It is part of the PR package for an attack on another culture or person. Of all the things we accused Saddam Hussein of before we attacked was that he had rape rooms. We paint our enemies as people who do not act sexually the way we do. That happens often. Sexual habits, laws, and mores are a way for people to separate themselves from other groups.

Sex and Punishment reinforces the idea that laws do not stop people from fulfilling their sexual desires. You mention that even though people could be executed or castrated for sodomy in the Middle Ages, these extreme punishments did not seem to decrease the frequency of such acts. If not the law, what factors do influence the prevalence of certain sex acts?

Other than biological influences, sex is often very much defined by power and class. If we go back in U.S. history, it was a white slave owner's prerogative to use his black slaves sexually. There was no such thing as the rape of a black woman. It didn’t exist. These acts were not described as rape, but as a master taking his due from these women. Of course, it was most certainly rape. I think that by taking a person in such a violent way, where a person does not have a choice and must submit or experience far worse punishment, that is an affirmation of the man’s power. To that extent, we really have come a long way.

Then there is class. If you look at the Dominique Strauss-Kahn case, some people were saying, “What's the big deal? He just fondled a maid.” Of course we know he didn’t just fondle her, but this is very much a class issue. Some still think it is almost a man’s right to take advantage of women of lower classes. This may not motivate people sexually, but this kind of cultural attitude does present opportunities and it helps people develop other sides of their nature that would not develop in other cultures.

Sex and Punishment reinforces the idea that sexual desire is undeniable, but would you agree that your book also demonstrates that we have an irrepressible need to single out and punish sex acts that deviate from cultural norms?

I’m not sure it is an irrepressible urge, but it does seem to be tied up with civilization itself. If the desires to experience sex and reproduce are left unchecked, then you have chaos. In many ways civilization tries to channel our natural urges. Early Christians, for instance, were much more focused on repressing sexual desire entirely, which created chaos. After a long dark period, I think we are now trying to channel those urges in a way that is more productive and does not create as much chaos.

What shifted in our culture from a time when President Kennedy could have numerous affairs without journalists reporting on it, to a period where President Clinton’s sexual infidelities constituted a national crisis?

I think there is a back and forth with the notion of personal privacy. In the book I cover the notion of publicly shaming people for their private sexual habits. That was actually a punishment issued by church and state. They were “outing” these people. Then, I think there was a reaction against this in which there was a notion that public figures had a wider zone of privacy, a period in which Kennedy and a lot of others benefited. This could not last. To an extent we are moving backwards, and even going beyond that. I think we have to stop and think, “Why does a sex scandal automatically disqualify someone from public office or a position of influence?” If you look at the Anthony Weiner or Eliot Spitzer cases, yeah these guys demonstrated lapses in judgment, but why did everyone automatically jump to the conclusion that Eliot Spitzer should no longer be governor of New York? We have moved backward in finding that any kind of sexual infidelity automatically disqualifies someone from a position of responsibility, and I think that is going way, way too far.

At the same time, I think there has been a very strong shift, which I feel is positive, in regards to the age of consent. It wasn’t long ago that the common age of consent in this country was 10. Now, if you look at the Polanski case and the shift from 40 years ago to now, Polanski almost got away with it. When it happened, there was a very strong belief that the girl must have wanted it. Many people thought that a 13-year-old could give consent to a much, much older man. We have moved very far from that point. Raising the age of consent is a more restrictive view, but it is a check on power. When a man has sex with a girl who is 30 years his junior, in my view that it is an abuse of power and influence. When Polanski committed the crime, he was on the cusp of a time when a man could take a young girl without many consequences, to the current view where this is absolutely not tolerated.

The case of Tyler Clementi, who jumped off the George Washington Bridge after his roommate tweeted pictures of Clementi kissing another boy, is a really important case in terms of personal privacy. It addresses whether the invasion of privacy and outing someone is okay. Not very long ago outing someone was absolutely proper. There was almost a duty to expose others. Now it is considered a crime. We are reaching a point where the personal zone of privacy for the less famous is becoming broader and the personal zone of privacy for the more powerful and famous is shrinking.

This is all linked to the Internet, the information age, and how easy it has become to publish information online. Ultimately, we are not going to get our privacy back. More information about us will find its way online. More people like polygamists and swingers will be outed by the Internet. Do you think this exposure will lead to a society that is more accepting of fetishes and sex acts that are currently perceived as deviant? What do you think the repercussions of the information age will be?

I can’t predict the future, but I think the repercussions in the short term will be chaotic. As a rule of thumb, the law is generally 10 to 15 years behind the times when it comes to social issues. Yes, what was once purchased at an adult store and hidden in a brown bag is now visible to every 7-year-old today. It is disturbing, but that is the case. To some extent I think people will become more jaded to what was considered deviant. I think the Clementi case, which is a big turning point, shows that the law is struggling with a person’s right to privacy.

Let me give you another example. One of the girls in my 12-year-old daughter's class took pictures of some of the other girls in their underwear and threatened to post these on Facebook. What should the sanctions be for this girl? I don’t know, but I do think that because of the ease with which our private lives are made public, the law is going to overreact for a while. I think this will create more chaos.

Eric Berkowitz
  • Jennifer Berkowitz
  • Eric Berkowitz
If you were a lawmaker, what criteria would you consider when determining which sex acts should be illegal. Consent? The greater good of society?

First, I would not take a view that one person’s sexual misconduct puts the entire society in danger, which is the traditional Judeo-Christian view. I believe there is room for sexual restriction, but these restrictions have to be based on questions of power and abuse. If, for example, one person takes advantage of another person’s lack of power, mental incapacity, age, or of course uses violence, that is always wrong. I think we need to address abuses of physical, political, or social power. After those kinds of abuses, where one person takes advantage of another, I have a hard time imagining why our sexual desires should be addressed by the law.

Buy Sex and Punishment: Four Thousand Years of Judging Desire here.

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click to enlarge Eric Berkowitz - Jennifer Berkowitz
Jennifer Berkowitz
Eric Berkowitz

click to enlarge Eric Berkowitz - Jennifer Berkowitz
Jennifer Berkowitz
Eric Berkowitz

In ancient Greece, the husband of a cheating wife could shame his rival by shoving spiky fish and radishes up the offender's butt. In the Middle Ages, impotence was one of the few allowable reasons for divorce. Throughout history a common punishment for rapists was marriage — to their victims.

While reading about the evolution of sex laws in Sex and Punishment: Four Thousand Years of Judging Desire, modern audiences may be shocked by what our predecessors considered legal and illegal, as well as how these "deviant" sex acts were punished. However, in examining the past, it is easy to imagine future generations judging our views on sex as being equally peculiar: from our public ridicule of politicians caught in sex scandals to the definition of man-on-man sex as exclusively a homosexual practice. Journalist and lawyer Eric Berkowitz explains what the history of sex laws he chronicles in Sex and Punishment says about us and our society, both past and present.

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