Sex and Punishment: Four Thousand Years of Judging Desire (55 page)

By 1903, the French stereotype of the upper-crust homosexual had been leavened to take on a distinctly effeminate aspect. In July of that year, the papers burst with reports of two men from “excellent families” who were charged with corrupting schoolboys in a posh Paris apartment with “Satanic Masses” and “orgiastic bacchanalias.” In truth, Baron Jacques d’Adelswärd-Fersen and Count Albert Hamelin de Warren were more aesthetic dilettantes than devil worshippers, but that did them little good in the public eye or in court. Their “Black Masses” were little more than bizarre reenactments of decadent French literature. D’Adelswärd-Fersen stated that he “wanted to put on stage what [he] had read in Baudelaire,” which he accomplished on one occasion by reading the poet’s
La Mort des amants
while incense burned, flutes played, and young men took poses draped only in shawls and togas. “[I]n truth,” according to one newspaper during the trial, “this pathetic and downright filthy case doesn’t live up to its name . . . [the defendants’] aesthetic
tableaux vivants
. . . are really no more artistic than the revolting taste of a pansy hairdresser.”

Artistic or not, such scenes generated intense interest and newspaper sales. Every element of the defendants’ “nature” was examined in detail, from their flowing, tinted hair and taste for jewelry and delicate clothing to their psychological “corruption” by literature. The trial allowed the public to vent its hostility against homosexuals just as the Wilde trials had done. Yet these defendants were nowhere near being in Wilde’s artistic league. The latter was, at least for a time, a successful public figure and respected writer. D’Adelswärd-Fersen and de Warren were grotesques from the fringe, debased aristocrats with nothing to do but ape the accomplishments of their creative betters. In the opinions of court experts, they were either mentally ill or had made very bad choices. Either way, they were criminals. “If our laws no longer permit us to punish the sin, as they did in the Middle Ages,” argued the prosecutor, “we can still punish the wrong-doers, so that this will not happen again.” Sodomy was no longer a crime, but being too obvious a sodomite was not permitted.

The judge gave them both six months in prison and a fifty-franc fine. De Warren later disappeared from view, but d’Adelswärd-Fersen’s name reappeared when he tried to shoot himself. He then went into self-imposed exile on Capri with a young Italian lover, where he smoked copious amounts of opium at his villa, wrote poetry, and financed France’s first homophile literary journal,
Akademos
. In 1923, he died of heart disease, a victim of drug abuse and what the judge at his trial had called “very unhealthy literature.”

Wilde’s troubles had helped set the stage for d’Adelswärd-Fersen and de Warren’s rough treatment in France, as did the creeping feeling that their inclinations were due to congenital problems exacerbated by bad habits. After reviewing the “defects” in d’Adelswärd-Fersen’s bloodline (insanity, epilepsy), a mental disorders specialist at his trial suggested that “we ought to recognize his diminished responsibility because of certain hereditary factors. That merits a certain indulgence.” Compared to the two years of hard labor given to Wilde, it seems that the baron received just that, but the ambivalence toward homosexuality, especially the question of whether or not it is a “lifestyle choice” or a congenital characteristic, would continue until the present day.
²⁵

NOTES

INTRODUCTION

1
Epstein,
Urbanization and Kinship
, 86–89.

2
Gettysburg College Student Handbook
, accessed September 30, 2011,
http://web.archive.org/web/20060904040430/
http://www.gettysburg.edu/about/offices/college_life/srr/whps/0607handbook.pdf
. The 2010 version of the handbook is slightly different.

3
Antioch College Sexual Offenses Prevention Policy, accessed September 30, 2011,
http://antiochmedia.org/mirror/antiwarp/www.antioch-college.edu/Campus/sopp/index.html
.

4
“Justice Department Covers Partially Nude Statues,”
USA Today
, January 29, 2002.

5
Herdt,
Sambia Sexual Culture
, 58–59; “Convicted Child Molester Gets 800 Years,” Associated Press, February 9, 2007.

CHANNELING THE URGE: THE FIRST SEX LAWS

1
Jacobson,
Toward the Image of Tammuz
, 196–202 (see also Gibson, “Nippur”;
Middle Assyrian Law [MAL]
40, cited in Roth,
Law Collections
; and Driver and Miles,
Assyrian Laws
); Roth, “Case Study from Mesopotamia,” 177–78.

When U.S. and allied troops invaded Iraq in March 2003, the Nippur archaeological mound sat in the battle zone between the modern cities of Basra and Baghdad. The painstaking work done at Nippur, where 80 percent of all Sumerian documents have been discovered, was nearly obliterated. Hours after the U.S. invasion, the Nippur mound was overrun by swarms of looters looking for treasures to sell on the black market. The damage caused by this riot of greed, both to Iraq’s patrimony and to our own understanding of our common history, is incalculable. How many Nin-Dadas have now been silenced forever? How many assemblies forgotten? What murderers, lovers, adulterers, gods, and children will we never meet? We can never know, and must now content ourselves instead with the archaeological work already done and the shreds of material left in the wake of the war. Our picture of the ancient Near East is like a child’s stick-figure drawing: The basics are there, but there are few reliable details.

2
Taylor,
Prehistory of Sex
, 1–3; see also “Iceman’s Final Meal,” BBC News, September 16, 2002.
Laws of Ur-Nammu (LU)
No. 7, cited in Roth,
Law Collections
: “If the wife of a young man, on her own initiative, approaches a man and initiates sexual relations with him, they shall kill that woman; that male shall be released”; Saggs,
Civilization
, 156;
MAL
8, cited in
Ancient History Sourcebook
,
www.fordham.edu/halsall/ancient/1075assyriancode.asp
; see the list of other similarities between Assyrian and Hebrew law in Smith,
Origin and History
, 245; Deuteronomy 15:12, 15:18; Sassoon,
Ancient Laws
, 31.

3
Plato,
Laws
, 783a; Smith,
Daughters
, 3–6, 353; Tannahill,
Sex in History
, 24, 41–46, 66; Roth,
Law Collections
, 200.

4
See Leviticus 15:19-30, 18:19; Ezekiel 18:6; Wenham,
Book of Leviticus
, 279; Epstein,
Tractate Niddah
, 5a–5b, 26–27, 174 (re: husband arrested for having sex with his wife during her menstruation); Epstein,
Tractate Keritoth
, 2b, 1 (re: death penalty); Ruggiero,
Boundaries of Eros
, 33–35; Tannahill,
Sex in History
, 352.

5
Tannahill,
Sex in History
, 27–29; Thornhill,
Natural History
; Van den Berghe, “Human Inbreeding Avoidance”; Lévi-Strauss,
Elementary Structure of Kinship
, 12;
Laws of Hammurabi (LH)
, in Roth,
Law Collections
, 154–58; Tetlow,
Women, Crime and Punishment
, 61. Babylonian men who had sex with their daughters were treated more mercifully, even though they were likely the aggressors. They were merely exiled. Scheidel, “Brother-Sister and Parent-Child Marriages,”; Pomeroy,
Goddesses
, 217–20; Middleton, “Brother-Sister and Father-Daughter Marriage,” 604; Shaw,
Oxford History of Ancient Egypt
, 226–28; Hjerrild,
Studies in Zoroastrian Family Law
, 167, 183, 194–97, 203. Note that the blessings of Persian incest did not go so far as to wipe away the “sin” of sodomy, which was regarded with “revulsion” because it was not a procreative act. Persian men also had to do penance for their refusal to marry relatives. The period of atonement was calculated by totaling up the number of menstrual periods the brides experienced while waiting for the grooms to marry them: “[T]he number of [unproductive] menstruation periods and the length of time must be determined in order to decide on the magnitude of the sin.” “Inbred Obscurity,” 2464, 2469; Posner and Silbaugh,
Guide to America’s Sex Laws
, ch. 10; see also “Inbred Obscurity,” 2469–70.

6
Johnson, “The Legal Status of Women”; Cooper, “Virginity”; Tetlow,
Women, Crime, and Punishment
, 12;
LU
6, 8,
MAL
55, 56–59,
Laws of Lipit-Ishtar
33, in Roth,
Law Collections
; Frymer-Kensky, “Virginity in the Bible,” 81, 86–89; Genesis 34:25–31; Deuteronomy 22:13–21.

7
Tetlow,
Women, Crime, and Punishment
, 36, 69, 140, 144;
MAL
22, Middle Assyrian Palace Decrees,
LH
141–43,
Laws of Eshunna
28, in Roth,
Law Collections
; Wenham,
Book of Leviticus
, 258; Roth, “Iron Dagger,” 205–6; Roth, “Slave and the Scoundrel,” 282; Greengus, “Textbook Case,” 37–39; Jackson,
Essays
, 60–61. The laws of Hammurabi required that an adulterous wife and her lover be thrown into the water to drown, unless the cuckolded husband had a change of heart and decided to let her live—in which case the lover was also allowed to survive (see
LH
129 in Roth,
Law Collections
).

8
LH
132–33, 141–43,
MAL
13, 24, in Roth,
Law Collections
; Tetlow,
Women, Crime, and Punishment
, 66; Reynolds, “Sex Morals,” 27–28; Heimpel,
Letters
, 386; Tetlow,
Women, Crime, and Punishment
, 137; Roth, “Iron Dagger,” 186–87; Herodotus,
Book II
, 111; Galpaz-Feller, “Private Lives and Public Censure,” 155–56; VerSteeg,
Law
, 173–74.

9
Tetlow,
Women, Crime, and Punishment
, 140;
MAL
2,
Hittite Laws (HL)
187–88, 199–200,
LU
8,
LE
51–52,
LH
119, 127, 146, 171, 193–94,
MAL
12,
HL
197, in Roth,
Law Collections
; Herodotus,
Book II
, 148–49; The belief that a man cannot rape his wife is actually quite modern. In 1957, the legal scholar Rollin M. Perkins accurately summarized U.S. law when he stated: “A man does not commit rape by having sexual intercourse with his lawful wife, even if he does so by force and against her will.” The “marital rape exemption” was finally overturned in California in 1980. See Ryan, “Sex Right,” 941–42; Finkelstein, “Sex Offenses,” 359–60; see also Westbrook, “The Female Slave,” 215, 222–23; Westbrook,
History of Ancient Near Eastern Law
, 1033.

10
MAL
14,
LH
109,
MAL
40–41 in Roth,
Law Collections
; Driver and Miles,
Assyrian Laws
, 44; Herodotus wrote that in Egyptian Thebes “a woman always passes the night in the temple of the Theban Zeus and it is forbidden to have intercourse with men,” Herodotus,
Book I
, 82, 199; Herodotus,
Book II
, 126, 179; see also Westbrook,
History of Ancient Near Eastern Law
, 854 (re: sex in temples as a violation of purity rules); Lise Manniche,
Sexual Life
, 13–15; Johnson, “The Legal Status of Women,” 175; Tannahill,
Sex in History
, 61, 99; Graham-Murray,
History of Morals
, 12.

11
Graham-Murray,
History of Morals
, 21; Vern L. Bullough,
Sexual Variance
, 53, 56. There were laws to guard the fertility of women, but those were intended to protect children, not mothers. Men who used violence on pregnant women and caused them to miscarry were fined (see
LH
209–14 in Roth,
Law Collections
). In Babylon, if a pregnant woman from the upper classes died during an assault, the assailant’s daughter could be executed as punishment. Any woman who had an abortion in Assyria was impaled, and if she died during the abortion, her dead body was stuck through with a spike nevertheless (
MAL
53 in Roth,
Law Collections
); Greengus, “Textbook Case,” 37 (re: lack of evidence that male homosexuality was a crime in ancient Sumer or Babylon);
MAL
19–20 in Roth,
Law Collections
; see also Olyan, “And with a Male,” 194.

12
Scholars do not agree on when Leviticus was written. Some purists maintain that the book came from the time of Moses, but the majority hold that the book was actually composed approximately one thousand years later. See Wenham,
Book of Leviticus
, 8–13, 250, 252; Leviticus 11:42–44, 18:1, 18:25, 20:22.

13
DeMeo, “The Geography of Male and Female Genital Mutilations,” 3–5, 18–20, 45–47, 73–74; see also Bullough,
Sexual Variance
, 59–60; Karass,
Sexuality
, 74–75; Hodges (citing Strabo), “Ideal Prepuce,” 385–89.