Sex and Punishment: Four Thousand Years of Judging Desire (3 page)

Even after four millennia and translation from a long-dead language, the anger in the assembly’s response rises from the tablets like heat:

A woman who values not her husband might know his enemy . . . He might kill her husband. He might then inform her that her husband has been killed. Is it she who [as good as] killed her husband. Her guilt exceeds even that of those who [actually] kill a man.

The Sumerian verb for “to know” meant the same as “to have sex,” and Nin-Dada’s silence after her husband’s murder was enough for the assembly to conclude that she was hungry for such knowledge. Far from seeing her as a weakling, the assembly made clear that she should have braved any intimidation to see that the murder was avenged. Nin-Dada was sentenced to die.

So go the brief lives and unnatural deaths of a Mesopotamian husband and wife, he murdered for unknown reasons and she for disrespecting her husband’s memory. They inhabited a world unknown to most of us, and barely understood by specialists at that.
¹

WITH THE CASE of Nin-Dada, this chapter’s inquiry into ancient sex law begins at the time of the first known human writing. Although I shall touch on earlier periods, the absence of documentation makes the journey hazardous. In 1991, for example, hikers found a frozen five-thousand-year-old man in the Italian Alps. He had fifty-seven tattoos, still wore snowshoes, and carried a copper axe that appeared to have been of little use to him in his final moments. He was killed in some kind of violent confrontation. The corpse, now known as Ötzi the Iceman, also appeared at first not to have had a penis, which caused no end of questions (the penis was later found, looking much the worse for wear). Was he ritually mutilated, or castrated by a jealous husband? Or did his genitals, so cold and lifeless for several millennia, just shrivel away? Without additional information—that is, something we can read—it is impossible to tell whether he died at the hands of the law or whether sex had anything to do with his fate. While Ötzi is a relatively recent ancestor of ours, we do not know enough to arrive at any conclusions about the sexual mores according to which he and his tattoo-loving neighbors lived.

This chapter will draw on cases from as far west as Egypt, across Turkey and the Eurasian landmass, to what is now Iran. Its main focus will be Mesopotamia (modern Iraq), as well as the land that now comprises Israel and the Palestinian territories. This vast region has hosted urban civilizations as complex as those of Rome, Greece, and various caliphates down to the Ottoman Empire, and as elementary as tiny bands of nomadic hunters. Its peoples spoke a multitude of languages and dialects, most of them now lost. These Sumerians, Assyrians, Babylonians, Hittites, Hebrews, and Egyptians were slaves and freemen, priests and prisoners, whores and kings, gods and witches. They mixed, intermarried, and raped each other. Everyone had a role to play in their respective societies, and was subject to punishment for bad conduct—especially when it concerned sex. Sex for some was blessed, and for others, grounds for impalement.

All ancient civilizations were intent on controlling people’s sex lives. The oldest extant written law, which hails from the early Sumerian kingdom of Ur-Nammu (circa 2100 BC), devoted quite a bit of attention to sexual matters. One of the earliest capital punishment laws on record anywhere concerned adultery. Ur-Nammu’s Law No. 7 mandated that married women who seduced other men were to be killed; their lovers were to be let off scot-free. Death awaited virtually every other straying wife in the Near East, while the fates of their lovers were often left to the husbands to decide.

The first legal codes, such as that of Ur-Nammu, were founded on the customs of earlier precarious times. Even after small groups coalesced into identifiable societies, towns faced constant threat by bands of marauders looking to exploit any opportunity to invade and pillage. Adultery risked destabilizing the unity and bloodlines of a family, rendering an entire tribe or settlement that much more vulnerable. Ur-Nammu’s death penalty for adulterous women was, in this light, no innovation; it was simply the first such punishment we know about that was written down.

Ancient societies influenced each other, and the laws of one group often were adopted by its enemies and then developed further. As centuries passed, for example, the elementary sexual prohibitions of Sumerian kingdoms like Ur-Nammu evolved into the obsessively detailed rules of the Hebrews, which in turn became the foundation for the sex laws of the church and every Christian state. Until recently, the Old Testament was believed to contain the world’s first written laws. How could it be otherwise, when the Torah (the first five books of the Bible) was said to have been issued to Moses directly from God, on a mountain, amid thunder? As a product of divine revelation, the Bible could then have no predecessor, at least not one written by human beings. The 613 rules set out in the Torah were supposedly written by the same “hand” that molded the universe, and to say that the Bible drew from other societies in the Near East was to imply that God looked to pagan kings for advice.

The Hebrew claim of precedence was shattered in 1902, when French archaeologists found several large black stones in ancient Susa, Iran, which bore carved cuneiform text. When reassembled, the stones formed a single stele more than eight feet high. The writing, it was later proved, consisted of the Babylonian king Hammurabi’s 282 laws, a highly sophisticated comprehensive legal code. The stele itself was carved around 1790 BC. Further investigation revealed that the Code of Hammurabi not only predated Moses and the Torah by at least five centuries, it also dominated Near Eastern law for at least fifteen hundred years. Like Moses, moreover, Hammurabi was merely the messenger: The stele bore the declaration that the king’s laws also originated from heaven.

Several other legal codes have since been discovered (including that of Ur-Nammu), which were set down long before Hammurabi’s own time. Many of the Bible’s sex laws now look more like knockoffs of earlier regional laws than the original word of God. For example, one law, protecting men’s testicles, from Deuteronomy 25:11–12, reads:

If two men . . . are struggling together, and the wife of one comes near to deliver her husband from the hand of the one who is striking him, and puts out her hand and seizes his genitals, then you shall cut off her hand; you shall not show pity.

Did that rule really come from on high? The Hebrews might have wished to believe that Deuteronomy was the revelation of Jehovah, but the truth is much more prosaic: It was likely borrowed from the neighboring Assyrians. The laws of Middle Assyria, which date from 1450 to 1250 BC, show similar concern for testicles and an equal readiness to punish women who hurt them:

If a woman in a quarrel injures the testicle of a man, one of her fingers they shall cut off. And if a physician bind it up and the other testicle which is beside it be infected thereby, or take harm; or in a quarrel she injure the other testicle, they shall destroy both of her eyes.

The similarity of these laws is evident, though the Assyrians were no friends of the Hebrews—they conquered the Kingdom of Israel in 722 BC and exiled its inhabitants. Assuming the Torah was in fact composed by men and not dictated to Moses by the Creator of the universe, it appears that this Hebrew law was a reflection of a regional testicle fixation. There are multiple other instances of Hebrew laws overlapping with the laws of their enemies. For example, section 117 of Hammurabi’s Code holds that a man can put his family members into service as slaves in order to pay a debt, but only for three years. A nearly identical Hebrew law permits such enslavement for up to six years.

Western sex law, whether via Assyrian testicles or Hebrew whorehouses, was thus created by ancient peoples who legitimized their rules by claiming that they originated in heaven. It is easiest to work with written records such as the cuneiform tablets in Nin-Dada’s trial, but doing so can prove deceptive as well. If it could be shown that other trials had taken place in the Assembly of Nippur on similar grounds, in which the widows were let off without punishment, we would not then be able to draw the same conclusions about Babylonian society. It stands to reason that there were many, perhaps thousands, of sex trials, the records of which have been lost to history. We are forced to work only with what we have discovered, and what we are able to decipher.

There is little to be learned by separating documented ancient history from
prehistory
. No ceremony, solar eclipse, visit from angels, or resetting of calendars marked the “start” of history. No one, presumably, knew or cared whether the stories of their lives were being preserved for people who would remain unborn for another four millennia. Nor was there a sudden change in morality; when people first wrote down their laws, the prehistoric mind-set was still in place. The written laws of Ur-Nammu, Hammurabi, and Moses reflected the crosscurrents of long-established, illiterate societies.
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BLOOD RELATIONS AND BLOODY RELATIONS: THE FIRST SEX CRIMES

Early law thus emerged from prehistoric traditions. There is a lot of guesswork involved in determining exactly what these traditions comprised, but we can be certain that sexual impulses themselves would have been as urgently experienced then as they are today, driving people to do things with their bodies for which they were punished. For Saint Augustine, the insistent demands of the genitals were God’s curse on humanity for the sins of Adam and Eve; every sex act and thought was a new penalty for the wrongs of the first man and woman. Coming at the same subject from a different perspective, Plato also recognized humanity’s intense craving for sex, saying in his last dialogue,
The Laws
, that it “influences the souls of men with the most raging frenzy—the lust for the sowing of offspring that burns with the utmost violence.” For Plato, the sex drive was a mad subconscious effort to reunify humanity’s fractured nature.

Early peoples did not characterize the sex urge in those words, but they certainly felt it. They surely recognized that something had to be done to corral the “frenzy” if people were to live together in large groups. Until the sexual impulse was tamed and subordinated to common needs, civilized life would be impossible. For men, that meant trying to reconcile themselves to the mystery of the female. In primitive societies, men presumably regarded women with the same awe and terror they felt toward the natural world. Early humankind was at perennial war with nature, the forces of which were lethal as well as incomprehensible. The core of the natural world was the female womb, from which newborn human life tumbled out in a gush of blood and screams.

It was not until about 9000 BC (roughly one hundred and eighty-five thousand years after the advent of
Homo sapiens sapiens
, or modern humans) that the link between sexual intercourse and pregnancy was confirmed. Until then, sex and childbirth were likely too far separated in time for people to make the connection, and in any event, women spent much of their short adult lives either pregnant or lactating. Children seemed to just appear in the womb. Even more incomprehensible, and perhaps horrifying, was the blood that periodically flowed from women’s bodies. Blood was life itself, magical and dangerous to lose, yet women bled freely for days at a time with no injury, and no one knew why. The one clear fact was that menstrual blood came from women only, and from the same place where human life began.

The first sexual prohibitions could well have taken the form of Paleolithic taboos against intercourse with women during their periods. (Such rules still exist in many cultures, grounded on the supposed “unclean” nature of menstruation.) These proscriptions would have had much deeper foundations than mere hygiene, however—perhaps the sudden appearance of menstrual blood reminded men that, despite their superior physical strength, they could not generate human life on their own. Perhaps menstrual blood was considered a sign of female shame or even infertility, as women only bled when they were not pregnant or lactating. Most likely, the rejection of women while their blood flowed was a precautionary move, a way to appease the threatening divine presence men felt when confronted with the unknown.

By barring sex during specific times of the month, primitive societies could impose order onto the chaos of sex and reproduction. As time passed, men’s fear of women often evolved into outright hostility, to the effect that menstruating women were regarded as equal parts dangerous and filthy. The belief was amplified in later centuries, in various cultures. To ancient Hindus, menstruation was a zero-sum game: Sex with women during their periods was thought to sap the “strength, the might and the vitality” of men, while avoiding sexual relations with menstruating women was believed to add to men’s wisdom and vitality. In Babylon, everything a woman touched during her period, from furniture to people, was considered contaminated, and to the later Assyrians the very word “menstruation” was synonymous with “unapproachable.”
³

No one took menstrual fear further into the realm of obsession than the Hebrews. The Torah, which decrees that women and everything they touch are unclean during their periods, also pronounces that this contamination extends to things touched by people who are themselves touched by menstruating women. For example, if a man “lies” with a woman during her period and later sleeps on another bed, that bed becomes unclean. The Bible also requires that at the conclusion of a woman’s period, she is to bring two turtledoves or pigeons to a priest for sacrifice. Until the birds were slaughtered, she would be separated from everyone in her community, including her husband. In any event, women were not to be touched for seven days following the beginning of their periods, regardless of when the bleeding stopped. Later versions of Jewish law pronounced women “unclean” for about half the month, requiring them to take ritual baths before returning to their husbands’ beds and mandating that wives test themselves for blood with rags before having sex. Violations of these laws subjected the man and the woman to arrest and, at least in theory, the death penalty.