Sex and Punishment: Four Thousand Years of Judging Desire (27 page)

There were several reasons. The courts evidently believed that sexual reputation was worth guarding even at the price of encouraging feuds. Furthermore, both civil judges and church deacons recognized that these suits placed them in charge of the minutiae of people’s day-to-day lives, which reinforced the courts’ authority. Perhaps, too, there was just too much money to be collected in fees and payoffs to turn these suits down. (It was common for people to pay off church courts rather than suffering penances.) Whatever motivated the courts to keep hearing these kinds of cases, one thing is certain: Hatred between the litigating parties was real, as was the potential for violence. Deadly force was a common response to even the pettiest insults, so allowing people to play out their interpersonal dramas in court rather than on the street with fists or weapons served a valuable social function. However nasty, the litigation process was an alternative to leaving people to solve their problems among themselves.

VIGILANTISM OR MOB justice in sex-related cases was common. When the courts did not act quickly or decisively enough, neighbors disciplined one another. People suspected of adultery, whoredom, or the like could expect to be awakened in their beds by their peers, outside making “rough music” by clanging pots and pans. Such treatment wrecked the targets’ reputations, no matter what courts later said. Before a cuckolded husband could sue his wife’s paramour for adultery, he might find himself publicly humiliated by being forced onto a donkey, facing backward, and led around town. And a wife who believed another woman had seduced her husband was bound to think little of slitting her rival’s nose, branding her forever with a “whore’s mark.”

Almost as odious as sexual deviants were “scolds,” or sharp-tongued women who spread scandalous lies about others. Once convicted of slander, either in court or by popular opinion, scolds were dunked in ponds or forced to wear iron and wood “scold’s bridles.” If they were acquitted but the mob nevertheless disagreed with the verdict, they were punished anyway. When Agnes Davis got into a nasty, insult-laden fight with Margaret Davis (no relation, evidently), both women were tried for being scolds. Agnes won her case, but Margaret was dunked in a pond. In revenge, Margaret’s allies broke into Agnes’s house, urinated in her porridge, and plunged Agnes in the river seven times.

England, and especially the English village, was already an ill-tempered, contentious place when the Reformation began. Puritan rule and the steady narrowing of sexual options only made matters worse. In many ways, the sex lives of the English were more regulated in the period before Charles II took power than at any time before or since. If it wasn’t a church tribunal, secular judge, or justice of the peace nosing into one’s life, it was neighbors peeking through the window: busybodies who might well fetch the local constable, to whom full power was given to break into any home and drag the alleged moral offenders away. It was not until the late seventeenth century that the break with Puritanism was decisive, and the English libido began to rediscover itself.
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GERMANY: BIG BROTHER IN THE BEDROOM

Lest England take the rap on its own for intolerance, it should be emphasized that sex was no less controlled on the Continent. Nowhere did the Reformation have a greater impact on sexual mores, in fact, than in the German-speaking lands where Protestantism began. As religion became radicalized, the German states stepped up efforts to require people to lead Christian (i.e., morally restricted) lives. State authority came to depend, to an extensive degree, on sexual repression.

As in England, the assumption of state power over sex in Germany was assisted by an increasingly narrow-minded populace. Shame, punishment, and casual violence awaited those who stepped outside the lines. In German towns of all sizes, adulterers, unwed mothers, and the like were subject to beatings by their neighbors. State and city governments were just as ready to humiliate moral offenders, adopting, for example, the practice of forcing adulterers and fornicators to stand in public clad in white smocks. Other deviants were pilloried, tied to stones, and fitted with headdresses with bells on them. These measures were meant to be less severe than imprisonment or corporal punishment, but people put on display for sex crimes could find themselves pelted with stones and otherwise abused.

Powerful trade guilds, which traditionally controlled much of the economic and social life in the towns, also demonstrated a readiness to exclude anyone for dishonorable behavior. They became a model for Reformation-era sex laws. Guild rules were strict: A master who had worked his entire life to attain his position could lose it all if his wife gave birth too soon after their marriage, for example. Guild members whose wives committed adultery were required to divorce and sever ties with them—forgiveness was not an option. The threat of banishment was used by the guilds to keep their ranks thin and their prices high, but it also reflected a moral consensus. When a guild ruled that the children of adulterous masters were to be forever excluded, it did so because people believed an adulterer’s entire family line was stained. It was better for a family to be cut off and fall into poverty than for the guild to be dishonored.

The penalty of banishment for adultery also found its way into state laws. In 1635, Bavaria’s sprawling morals ordinance required that double-adulterers (lovers who were each married to others when they had sex) be banished for five years. If they were caught indulging their carnal appetites with each other again, they were supposed to be put to death. The rationale for such harsh punishment was made clear in the law itself:

[I]f these grave sins are not prevented or punished with all possible energy and seriousness, almighty God will be greatly offended and angered and will be moved to send and inflict all manner of serious, immediate war, unrest and other country-wide punishments.

Both Catholic and Protestant German states saw no limit to their authority to regulate their subjects’ behavior. Multiple and detailed sex laws popped up everywhere. Sometimes they overlapped so that the judges themselves could not figure them out. But the explosion of new morality regulations caused a much deeper problem as well: The more the states tried to govern sex, the weaker they felt their power to be, as there was simply no way to control individual behavior on such a minute scale. Ordinances could be passed, such as the one in Baden barring males and females from bathing together, but who really knew whether or not the law was being followed? How were lawmakers to be sure their subjects were
not
romping together in the water? They could not. There are no witnesses to what does not happen.

By making more sex acts illegal, the states also multiplied the possibilities for lawbreaking. A shared bath, a tryst, a visit to a prostitute—everything outlawed by the welter of new laws became an act of civil disobedience simply because it was illegal. The more people ignored the laws, the more enfeebled lawmakers felt themselves to be. In 1624, Friedrich V, Margrave of Baden, complained that despite all the restrictions against fornication and adultery already in place, criminal sexual behavior had not ceased: “We have, alas, variously discovered, with extreme displeasure and consternation . . . damnable fornication and adultery have so increased and proliferated that they are scarcely held to be sins any more.”

This pervasive feeling of vulnerability drove German states ever deeper into people’s sex lives. Every new measure was, in effect, an admission that the prior ones were being ignored. In 1629, Maximilian I, Elector of Bavaria, became fixated on the idea that his subjects were having illegal sex with each other and with priests. He set up a top-level commission to conduct an “energetic” hunt for such lawbreakers. The commission hired spies who did their best, but they were unable to satisfy him. At one point, they apologized for the lack of results: “The said spies excuse themselves,” they wrote to Maximilian, “as no such clerical concubines or secret trysting spots have come to their attention.” Maximilian badgered the commission to keep at it—for eight more years.

German governments also set up a network of marriage courts to regulate most aspects of sexual behavior, whether marriage-related or not. These held sway in the Old Swiss Confederacy as well: Court officers in Zurich warned women not to receive men who were not their husbands, and also began punishing prostitutes. In Bern, women were barred from riding in sleighs unless accompanied by their fathers or husbands. At the same time, “discipline masters” were deployed to make sure that “each and every scandal, sin and act which is against God” was dealt with. To meet these ambitious goals the masters relied on informants, denouncers, and spies.

Morals violators in Germany were also subject to a bewildering array of punishments, often applied in combination. Fines were usually levied, either by themselves or as add-ons to other measures. In Bavaria, fornication fines brought in more money to the lower courts than any other source of income. Many of the fines were deliberately steep; a maid or cook found guilty of fornication might be obliged to forfeit a year’s salary. In actual practice, however, judges adjusted the penalties to fit people’s circumstances.

The increased state involvement in the sex lives of the Germans came at the expense of traditional church-based morality controls. The same process took place in England, and by 1660 the English church courts were sneered at as corrupt and ineffective, especially as about half of the people sued in court chose to be excommunicated rather than show up to face the charges. By the end of the seventeenth century, church courts still controlled marriage disputes, but their primacy in other morality cases was seriously slipping.
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The turf battle between church and state over which would govern sexual misconduct was less of an issue in Protestant states than in Catholic realms. Protestants saw no difference between civil and religious discipline. In their view, the state was there to enforce religious doctrine. But the Catholic Church didn’t want to give up any of its powers, and fought hard to keep the upper hand—especially, as we shall see, when its own secrets were at issue.

TASTY MORSELS AND FUCKING FAUCETS: THE BIRTH OF OBSCENITY

The laws of sex often change, but the acts themselves remain constant. Adultery, incest, bestiality, same-gender sex—all of it has gone on every day since the beginning of human civilization, if not earlier. With the Early Modern period, however, came an entirely new form of forbidden sex—one that inhabited the handiwork of printing machines rather than being embodied in flesh and blood. On the virgin battlefield of obscenity, the law fought against materials depicting people having sex, rather than sex itself. For this fight there was no ancient rulebook. New laws had to be created.

“Where there is no law, there can be no transgression,” said a flummoxed English judge about a dirty book. “I owe that [the book] is a great offense; but I know of no law by which we can punish it.” In England, laws against obscenity had not yet come together. But on the Continent, ecclesiastical and state authorities alike had long been haggling over who would write and enforce the rules against sexy words and pictures. For some time, it was anyone’s guess as to who would eventually be in charge.

Blatantly sexual depictions are as old as the “Venus” figurine found in Germany by archaeologists in 2009, which dates back an estimated thirty-five thousand years. Its oversized breasts, ample hips, and clearly defined vagina, researchers said, confirmed that “ancient humans had sex on their minds”—which is, of course, no surprise. Such totems were most likely symbols of fertility rather than strictly erotic in purpose, but the line between the two was just as likely unimportant.

Sexual images were not forbidden in the ancient world. The word “pornography” comes from the Greek
pornographe
, or “writing about whores”—of which there was much at the time. (Athens was also blanketed with statues of Hermes, featuring splendid erections.) The word “obscene” probably derives from the Latin
caenum
, which means “filth and excrement” but also meant “penis” and, in its plural form, could refer to either genitals or buttocks. The word may also derive from
scaena
, or “stage.” Joined to
ob
, it could thus have meant “offstage,” i.e., inappropriate for public exhibition. Whatever the etymology, sexually explicit writing and pictures were everywhere in Rome, much of it intended to arouse consumers. For the most part, it was tolerated. (Tellingly, the French
obscénité
, a long-disused word, was revived in France in the 1660s, just as the printing of frankly sexual material became a crime under French law.)

When the educated classes of Renaissance Europe rediscovered the Greek and Roman classics, many took special interest in the eroticism of Ovid and the filthy verses of Martial and Juvenal. Renaissance men and boys also delighted in antiquity’s profusion of explicit images and descriptions of sex. But while there were plenty of educated people “masturbating to the classics,” sexual material was sparse in circulation. Until the advent of mass printing, any one piece of pornography was certain to remain just that: a singular object for private consumption.

When modern printing and reproduction techniques came into use at the end of the fifteenth century, private pleasures became public phenomena. A pornography mass market materialized across all social classes almost overnight. Had such materials remained in manuscript form, circulated only among the elite, censorship of sexual depictions would have been far less likely to have arisen, but the creation of a consumer audience for pornography sparked a rush by secular and religious authorities to control and punish it.

Early editions of printed porn were, like their manuscript predecessors, literate and geared to upper-class tastes. A set of erotic verses attributed to Virgil,
Carmina Priapeia
, went to twenty-two editions by 1517. Another printed collection of dirty jokes appeared in 1450, in Latin, authored by the scholar Poggio Bracciolini. The volume’s sexual and scatological double entendres were clever, but were intended only for the educated classes. They did not reach anyone who did not understand Latin or care about clever wordplay. The growing mass market demanded much earthier fare. As a prostitute urges in the
Dialoghi
(
Dialogues
) of Pietro Aretino, one of Italy’s most infamous sixteenth-century pornographic works: