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When Desire Meets the Law: A Century of Sexual Regulation
In 1969, a group of patrons at the Stonewall Inn fought back against a police raid, sparking what would become the modern gay rights movement. That same year, a federal appeals court ruled that a gay employee couldn't be fired solely for his "immoral conduct" - the same week as the Stonewall uprising. These watershed moments marked dramatic shifts in how society and law approached human sexuality. Eric Berkowitz's "The Boundaries of Desire" has become a cultural touchstone for understanding the complex relationship between sex and law, praised by legal scholars and social commentators alike for its unflinching examination of how governments regulate our most intimate behaviors. The book reveals how yesterday's sexual taboos become tomorrow's accepted practices and vice versa, showing that while the physical acts of sex remain largely unchanged through history, our judgments about them are in constant flux.
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The Paradox of Sexual Regulation in Modern Society
Some aspects of human existence remain constant throughout history, while others transform dramatically or shift in societal perception. Sex falls squarely into this latter category-the physical acts have changed little, but how we judge others' sexual behaviors evolves continuously. This tension creates fascinating paradoxes in our legal systems.
Consider that over 750,000 Americans are currently on sex offender registries, facing severe restrictions on where they can live, work, and associate-many for their entire lives. Yet research consistently shows that released sex offenders are actually less likely to reoffend than other types of criminals, and these registries have failed to demonstrably improve community safety.
Similarly, our digital age presents unprecedented challenges for regulating sexual behavior. When teenagers voluntarily produce and share sexual content with each other, the line between victim and perpetrator blurs. A minor who sends a sexually explicit selfie to a boyfriend or girlfriend can simultaneously be considered both a victim of child pornography and its creator-a legal paradox that demonstrates how poorly equipped our legal frameworks are for addressing contemporary sexual realities.
The past century has witnessed revolutionary changes in sexual attitudes, largely influenced by Freud's universalization of sexual desire. While Freud believed civilization required some suppression of instincts, he criticized enforced abstinence and monogamy. By 1930, U.S. jurist Augustus Hand could state what seemed obvious: "The sex impulses are present in every one." This recognition helped fuel movements for birth control access and reproductive rights, though these were often problematically intertwined with eugenics movements that targeted the "mentally and physically defective."
Today's legal approaches to sexuality continue to reflect these contradictions-progressive in some areas while maintaining deeply problematic elements in others. The challenge remains finding balanced approaches that protect vulnerable individuals without criminalizing consensual adult behavior or reinforcing harmful stereotypes.
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When Marriage Meant Sexual Servitude
Questions about sexual power in the home touch our interior lives profoundly. Everyone has opinions about what families should be, as our foundational experiences center on family dynamics. The law becomes particularly interesting when rules governing domestic sexuality are imposed from outside, raising questions about who should intervene when those rules are broken.
For centuries, marriage gave husbands unlimited sexual access to their wives' bodies. According to Lord Matthew Hale's influential doctrine, a woman's marriage vows included perpetual consent to sex, making it legally impossible for a husband to rape his wife. This "Marital Rape Exemption" proved remarkably durable, outlasting prohibitions on abortion, birth control, and interracial marriage.
The exemption persisted in Britain until 1991 and required relentless feminist pressure to eliminate in America. The groundbreaking 1984 New York case involving Mario Liberta, who raped his wife while their two-year-old watched, finally established that "a married woman has the same right to control her own body as does an unmarried woman." Yet the privilege had passionate defenders-Florida representative Tom Bush argued governments had "absolutely no business invading the sanctity" of marriage, while California senator Bob Wilson infamously asked, "If you can't rape your wife, who can you rape?"
Though spousal rape was finally criminalized in all states by 1993, it remains underprosecuted, with many loopholes making it a less severe crime than stranger rape. Courts struggled to abandon their indulgence toward sexually violent husbands, with Pennsylvania's highest court complaining about inviting juries "into the privacy of the marital bedroom."
Well into the twentieth century, husbands could sue their wives' lovers for "enticement," "alienation of affections," or "criminal conversation"-all terms for robbing a husband of his wife's exclusive sexual "services." The wife's desires were irrelevant; as one British commentator noted in 1937, she was no more capable than a horse of consenting to adultery.
By the early 1980s, no-fault divorce had largely replaced adultery as grounds for ending marriages, though anti-adultery laws remained in twenty-one states by 2014. These vestigial laws occasionally ensnared individuals like Judith Stowell, a married Massachusetts woman convicted of adultery in 1983 for prostitution, whose appeal was rejected because the state maintained a "deep interest" in punishing behavior that "threatens the institution" of marriage.
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The Revolution in Domestic Power Dynamics
The near-absolute power of husbands diminished considerably in the twentieth century. Women's suffrage in 1920 (US) and 1929 (Britain) heralded what scholar Christina Simmons called the "irreversibility of some kind of equality for women," giving electoral muscle to efforts against female sexual subservience.
Women's large-scale entry into the workplace, beginning during World War I, profoundly affected domestic power dynamics. By 1930, approximately 25 percent of professional women and 32 percent of female clerical workers were married. Despite pay disparities and Depression-era backlash, women gained economic independence that allowed them to choose marriage on their own terms.
Birth control had incalculable effects on power within marriage. Despite the Comstock Law criminalizing contraceptive information and sales, women across all classes learned to obtain and use contraceptives. The 1936 One Package decision allowed contraceptives for "disease prevention," effectively opening the market. By 1937, manufacturers were selling half a million condoms daily at eight cents each. By 1942, America had over 800 birth control clinics, with Ladies' Home Journal reporting that nearly four-fifths of women approved of contraception. This revolution allowed women to pursue sex for pleasure, protected by contraceptives.
Despite declining marriage rates, the law has persistently framed marriage as the only acceptable context for sexual relationships and full social participation. Those who deviate-particularly poor single mothers-have faced severe consequences, from job loss to forced sterilization.
Anti-cohabitation laws remained enforceable well into the 1970s, with thousands of prosecutions between 1968-1972. Sheboygan, Wisconsin became notorious for its aggressive enforcement, with 82 arrests in 1967 alone. Police surveillance targeted unmarried couples, resulting in job losses for recreation director James Decko and several Milwaukee policemen. Even Barnard College student Linda LeClair faced suspension in 1968 for living with her boyfriend.
For poor women, especially African Americans, the restrictions were even more severe. Rooted in slavery's sexual exploitation and post-Civil War attempts to control Black sexuality, welfare policies punished unmarried mothers through "man in the house" rules and surprise raids. These policies cut nearly 750,000 children from aid nationwide, with Alabama alone removing 16,000 children-nearly all Black-from welfare rolls.
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From Sin to Sickness: The Medicalization of Homosexuality
In 2013, Ukraine saw demonstrations against European integration, with Orthodox Christians marching against what they called "Euro Sodom," fearing homosexuality would infect their country. That same year in Syria, ISIS fighters used accusations of male-on-male rape as propaganda against Shi'a enemies. These episodes occurred outside Western boundaries, but similar anti-gay rhetoric has pervaded American and European jurisprudence over the past century.
The connection between homosexuality and treason was cemented in 1913 when Austrian Colonel Alfred Redl committed suicide after being exposed as both homosexual and a Russian spy. For money to fund his lavish lifestyle, Redl had betrayed Austrian military secrets for a decade, resulting in agent deaths and compromised battle plans. When authorities searched his apartment, they found not only secret documents but pink whips, cosmetics, women's clothing, and photos of officers in drag-linking homosexuality with betrayal of both sexual norms and national loyalty.
Magnus Hirschfeld later asked whether Redl would have betrayed his country if his sexuality hadn't been criminalized, noting he was targeted for blackmail precisely because his orientation was shameful. Ironically, this logic would later be reversed in America, where homosexuals' supposed innate disloyalty was used to justify their oppression.
After WWI, returning American soldiers brought new sexual awareness home, prompting aggressive enforcement of morals laws. In 1919, the US Navy's Newport sting operation became notorious when young sailors were deployed to entrap homosexuals by having sex "to completion" with targets before arresting them. The operation, approved by Assistant Secretary of the Navy Franklin D. Roosevelt, targeted Newport's gay subculture that had flourished among the 20,000 sailors stationed there during the war.
By World War II, the American military had developed formal policies to exclude "homosexual persons" as having "psychopathic personality disorders." Draft examiners were instructed to check for signs like discomfort with nudity, "feminine body characteristics," "effeminacy in dress or manner," and even occupational choices like interior decorator or dancer that suggested difficulty accepting the "male pattern."
The military's hunt for homosexuals was relentless. While only 4,000-5,000 of 18 million Americans examined during WWII were rejected as homosexual, those caught in service faced brutal treatment. Interrogators extracted detailed confessions and names of other suspects through humiliation, false promises, and threats. One rumor could trigger full-scale purges filling stockades with suspected "queers." Some guards sexually exploited prisoners, forcing them to perform oral sex. From 1941 until 2011, approximately 114,000 service members were discharged for homosexuality.
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The Cold War Persecution of Gay Americans
The American government's persecution of homosexuals reached its zenith during the Cold War, when gay employees were systematically purged from federal positions. A 1964 memo from personnel officer John Steele captured the prevailing attitude: "Once a homo, always a homo," reflecting the belief that homosexuality was "uniquely nasty" and irreversible. Between 1947 and 1975, an estimated 5,000 suspected gay federal employees were fired in what became known as the "purge of the perverts," with thousands more resigning under pressure.
FBI Director J. Edgar Hoover, himself the subject of homosexual rumors, established extensive surveillance of gay Americans. The Bureau maintained "sex deviates" files and tracked individuals for years, disrupting their employment and demanding names of other homosexuals. Even high-ranking officials weren't immune-Undersecretary of State Sumner Welles was forced to resign after propositioning a Black railroad porter, despite President Roosevelt's initial support.
The persecution intensified in 1950 when State Department security head John Peurifoy revealed that ninety-one homosexuals had been fired in the previous three years. Senator Joseph McCarthy seized on this revelation, merging fears of "commies and queers" into a unified threat. A Senate investigation led by Clyde Hoey concluded that homosexuals were "security risks" and "corrosive influences" despite finding no evidence that any gay American employee had ever been blackmailed for information. President Eisenhower's 1953 Executive Order 10450 formalized "sexual perversion" as grounds for dismissal from any federal position.
The resulting witch hunt created a climate of fear, with employees reporting colleagues for "lesbian characteristics" or "girlish walks." Even Senator Lester Hunt committed suicide after threats to expose his son's homosexuality. The tide began turning only in the 1960s, when Frank Kameny's Mattachine Society of Washington fought back through courts and protests. A key 1969 victory came when a federal appeals court ruled in Norton v. Macy that "immorality" alone wasn't grounds for dismissal-the same week as the Stonewall Uprising.
By the 1970s, sodomy laws were enforced sporadically but still used to justify anti-gay discrimination. Despite growing acceptance, mainstream media like Time magazine maintained an ambivalent tone, framing gay rights advances alongside alarming imagery and warnings about homosexuality "spreading." Law enforcement remained hostile-Los Angeles police chief Ed Davis compared gays to "lepers spreading disease," while Chief Justice Rehnquist likened gay rights groups to measles carriers.
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The Criminalization of Childhood Sexuality
The sexual abuse of children provokes justified outrage, yet our legal approach reveals deep contradictions. While modern law has made protecting children from sexual abuse a defining mission, it often simultaneously blames them for tempting adults. This contradiction has intensified as the definition of childhood expanded to include adolescence.
Though statutory rape laws were established to protect minors deemed incapable of consent, many initially applied only to youth of "chaste character," leaving numerous children vulnerable. Even as authorities hunted predators, underage victims were routinely punished for "enticing" attackers. By the late 1980s, even prepubescent children faced sex crime charges, with minors appearing on public sex offender registries. Today, teenagers sexting each other can be charged as distributors of child pornography, blurring the line between victim and victimizer.
The consequences of criminalizing childhood sexual behavior have been devastating. By 2009, thirty-six states required sex offender registration for juveniles, with only a few exempting children under twelve. The 2006 Adam Walsh Act mandated registration for those fourteen and older who commit "aggravated sexual assaults," sometimes for life.
Children are being treated as sex criminals for typical childhood behaviors. An eleven-year-old with neurological impairments was registered for groping his stepbrother in the bath. A "sex ring" of seven-year-olds was busted in Pennsylvania for "teaching each other to have sex." An eleven-year-old Minnesota boy became a "predatory sex offender" for life after sex with an eight-year-old girl. A Texas twelve-year-old who mooned younger children was placed on the registry. In New Jersey, an eleven-year-old who didn't understand the terms "sex" or "rape" was registered for life after an "admission" of penetrating his cousin.
The United States stands alone in its punitive approach-at least six other countries have sex offender registries, but none include children so broadly. This criminalization disrupts therapy and rehabilitation, as anything children divulge in treatment might result in additional charges. Therapists face legal jeopardy if they maintain confidentiality about a child's confessions.
Even Toni Johnson, once a leading advocate for treating children as "perpetrators," has reversed her position. In 2005, she acknowledged that "children should not be judged by adult standards" and called it "cruel and unusual punishment to condemn them to a lifetime stigma as a sex offender." Despite 92 percent of judges expressing concerns about placing juveniles on sex-offender lists, the law gives them little discretion.
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The Obscenity Paradox: Context Is Everything
Obscenity should be a dead issue in our digital age where smartphones distribute homemade pornography, children bypass internet filters, and explicit content saturates media. Yet pornography's opponents have intensified their efforts, with figures like Andrea Dworkin and Catharine MacKinnon claiming porn directly causes rape and violence. The legality of sexual materials often depends more on context than content, as demonstrated when anti-obscenity activists themselves display "objectionable" materials to legislators in the name of moral outrage.
The line between pornography and prostitution is illogically thin. Both prostitutes and porn actors engage in sex for money, yet one is criminal while the other is legal in many places. The distinction hinges absurdly on whether a camera is recording. In the landmark 1987 case involving Harold Freeman's film "Caught from Behind, Part II," the California Supreme Court ruled that paying actors for sex wasn't prostitution because Freeman didn't pay for his own or the actors' "gratification" but rather to simulate pleasure on camera.
Since 1957, obscenity law has largely hinged on "local community standards"-the notion that conservative regions shouldn't have to accept material deemed acceptable in more permissive areas. The Internet, however, has rendered this standard absurd while paradoxically strengthening its enforcement power. Prosecutors now download material from anywhere, declare it has "entered" their jurisdiction, and apply their local standards nationally.
Digital technology has created a legal quagmire for adolescent sexuality. "Sexting" among teenagers has become widespread, yet the law often treats minors who share images of themselves as child pornographers facing severe penalties, including sex offender registration.
The legal contradictions are stark: teenagers can legally have sex but face felony charges for documenting it. In Pennsylvania, several high school girls who photographed themselves in towels or underwear faced felony charges unless they enrolled in a program to learn "what it means to be a girl in today's society." Though their parents successfully fought the charges, the prolonged legal battle harmed the families.
Obscenity law has historically operated with profound hypocrisy. Anthony Comstock, America's zealous anti-obscenity crusader, privately battled his own demons, having "masturbated so furiously in his youth that he feared he might be driven to suicide." This personal struggle fueled his crusade against sexual materials that might "corrupt the thoughts" of youth.
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The Exploitation Paradox: Prostitution and Sex Trafficking
The modern legal approach to prostitution echoes ancient conflicts. In sixth-century Constantinople, Emperor Justinian and his wife Theodora (a reformed prostitute) banned prostitution and forced sex workers into convents. Some reportedly threw themselves off cliffs rather than live as nuns, while other accounts claim they welcomed the chance at pious lives. This same tension-between "saving" sex workers and respecting their autonomy-continues today.
Modern anti-trafficking efforts often harm the people they claim to help. Raids on massage parlors result in arrests of potential victims, while "rescue" operations in poor countries place women in refugee camps, deport them to unsafe countries, or force them into exploitative low-wage work. In Sweden, where selling sex is legal but buying it is criminalized, sex workers report that the trade has gone underground, making their work more dangerous.
The word "prostitute" comes from Latin prostare ("to stand out"), reflecting how sex workers have always been marked as separate from society. Historically, the definition centered on a woman's perceived moral failings rather than economic transactions-any woman considered "freely available" to multiple men was labeled a whore, regardless of payment. Today, money defines prostitution legally, but sex workers remain socially marginalized while simultaneously objects of intense sexual interest.
Early twentieth-century America viewed prostitution as the embodiment of moral and public health decay. The 1908 Supreme Court characterized prostitutes as hostile to the family unit and "holy estate of matrimony," which it deemed the foundation of civilization and moral progress.
Social-purity crusaders targeted prostitutes as moral and physical contaminants alongside poor immigrants and African Americans. While some reformers advocated education and rehabilitation, others promoted returning to an idealized past. The "white slavery" panic falsely accused foreigners and Jews of abducting innocent white girls, leading to nearly 2,200 convictions under the 1910 Mann Act for transporting women across state lines for "immoral purposes." Urban brothels were shut down, forcing more prostitutes onto dangerous streets.
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The Color Line in Sexual Regulation
Laws governing interracial sex formed a critical part of racial oppression, particularly in America where they were used to maintain white supremacy. These laws barred people of different races from marrying or living together while engaging in "lewd and lascivious fornication," with some states criminalizing interracial sex altogether.
When France brought approximately 500,000 colonial troops and workers from Africa and Indochina during World War I, authorities were dismayed to discover French women eagerly engaging in sexual relationships with these men. These liaisons undermined the strict racist hierarchy supporting French colonial power.
For many colonial soldiers, sex with French women represented payback for lifetimes of humiliation. As one Madagascan wrote, white women in the colonies "regard us rather like lepers," while in France "they come to us and solicit us." Colonial troops sent photographs home as proof of their conquests, with authorities intercepting nearly 100,000 photos and postcards showing nude French women, mixed-race children, and Franco-Indochinese couples.
While George Winston denounced "monstrous" black "beasts" supposedly threatening white women, Eastern European Jews were simultaneously blamed for a largely fictional "white slavery" epidemic. Though Jewish female refugees were actually victims in international prostitution networks, publications like McClure's accused "Jewish scum" of kidnapping innocent American girls for a "closely organized machine" of sin.
The Mann Act was part of broader efforts targeting the sexuality of immigrants and minorities. When sexually transmitted infections became better understood scientifically, the medical establishment blamed their spread on the "immorality" of African Americans and poor immigrants. One gynecologist claimed disease rates rose due to "inpouring of a large foreign population with lower ideals," while African Americans were labeled a "syphilis soaked" race.
The Tuskegee experiment reflected the same racial attitudes that drove miscegenation laws in Alabama and more than two dozen other states. Alabama made it a felony for a white person to marry or "live in adultery of fornication" with anyone having even one black great-grandparent. Though definitions of racial categories varied by region-from "mulatto" to exotic classifications like "octoroons" (one-eighth black) and "sangmelees" (one sixty-fourth black)-all miscegenation laws aimed to preserve white privilege and an imagined racial "purity."
In 1967, the Supreme Court unanimously struck down Virginia's miscegenation law in Loving v. Virginia, demolishing similar laws in fifteen other states. The Court rejected Virginia's arguments that interracial couples faced "insuperable difficulties." For the Lovings, it meant they could finally live together in their hometown without fear of jail, and their children were no longer considered illegitimate.
Despite this legal victory, interracial couples continued to face significant hostility. Alabama didn't formally repeal its anti-miscegenation law until 2000, with 40% of voters wanting to keep it. As recently as 2011, 46% of Mississippi Republican primary voters thought interracial marriage should be illegal. Courts still found ways to punish interracial relationships, particularly involving white mothers with black partners, often removing children from their custody on grounds of "moral unfitness."
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The Shifting Boundaries of Sexual Consent
The intersection of law and sexuality creates profound social discomfort. While discussing sex law, most people react with embarrassment, aware that the boundaries between legal and illicit sex are ones many have crossed or desired to cross. The consequences of transgression can be severe-loss of family, livelihood, and reputation.
Throughout history, many have been wrongly condemned: children branded as sex offenders, sexting teens charged as child pornographers, homosexuals jailed for their identity, and African Americans brutalized for "poisoning" the white race through sex. The 20th century's emphasis on sexual self-actualization came with hazards, as laws moved from regulating what people did to controlling what they think and who they are.
Sexual crimes provoke disproportionate alarm and hasty, rough solutions. We've repeatedly shown willingness to abandon legal norms like evidence and presumption of innocence when facing perceived sexual threats-from imagined predatory homosexuals to satanic child abusers. Before establishing new categories of sexual wrongs, we need caution. While masturbation is no longer condemned, the "autoerotic pleasure of despising others" remains destructive.
The rising "autonomy of individual desire" has been accompanied by what Wendell Berry calls an abstract form of judgment that disconnects actions from their consequences. Despite progress, sexual boundaries remain contested and problematic. While 570 men were arrested in sex trafficking stings across the US, gay and lesbian protections were being rescinded in places like Kansas. Many branded as sex offenders continue to suffer long after exoneration, with false accusations and moral panics still occurring.
These contradictions reveal the danger of what Berry calls the "autoerotic pleasure" of moral outrage divorced from careful consideration of facts and consequences. As we continue to navigate the complex intersection of sexuality and law, we must strive for approaches that protect the vulnerable while respecting individual autonomy and avoiding the destructive impulse to condemn without understanding.
