The Boundaries of Desire

The Boundaries of Desire Plot Summary

Introduction

Throughout history, the law has served as both a weapon and a shield in the realm of human sexuality. From ancient civilizations to modern democracies, those in power have consistently used legal frameworks to control intimate behaviors, define acceptable relationships, and punish those who transgress established norms. The intersection of sex and law reveals perhaps the most personal way that governments and societies exert control over individual lives. Consider how legal systems have criminalized certain sexual orientations, regulated marriage across racial lines, or dictated reproductive rights. These weren't merely abstract legal concepts but deeply personal intrusions that shaped millions of lives. By examining how laws governing sexuality evolved across different historical periods, we gain insight into broader societal power structures and the gradual, often painful progress toward greater personal freedom. This historical perspective offers valuable context for understanding contemporary debates about sexual consent, gender identity, and reproductive autonomy that continue to divide societies worldwide.

Chapter 1: Marriage as Sexual Control: Property Rights and Patriarchy (1900-1960s)

The early 20th century saw marriage function primarily as a system of sexual control, particularly over women's bodies and behaviors. Until the 1960s, the legal framework treated wives essentially as their husbands' property. This was exemplified by what legal scholars called the "Marital Rape Exemption" - the legal doctrine that a husband could not be prosecuted for raping his wife. As England's Chief Justice Matthew Hale declared in the 17th century, "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their marriage the wife hath given up herself in this kind unto the husband which she cannot retract." This doctrine proved remarkably durable, outlasting many other restrictive laws. In the United States, it wasn't until 1984 that a groundbreaking New York court decision in the case of Mario Liberta exposed the horror of this privilege. Liberta had lured his estranged wife to a motel room and sexually assaulted her while their two-year-old son watched. When charged with rape, he argued that since they were technically married, the law should stay out of their "private" sex lives. Though he initially won in lower court, New York's highest court eventually declared that "a married woman has the same right to control her own body as does an unmarried woman." The legal subordination of women extended beyond sexual access. Under the doctrine of coverture, "the very being or legal existence of the woman is suspended" upon marriage. While this principle was gradually eroding in matters of property by the early 1900s, a wife's body remained her husband's domain. Domestic violence was similarly protected by legal indifference. In 1874, when Richard Oliver brutally whipped his wife for serving him insect-infested bacon, the North Carolina Supreme Court ruled that unless "permanent injury has been inflicted," it was "better to shut out the public gaze, and leave the parties to forgive and forget." Women's economic independence and access to birth control proved crucial in shifting these power dynamics. During the 1920s, the percentage of working married women rose 56 percent. Despite gross pay disparities, growing numbers of women gained the financial wherewithal to leave bad marriages or survive abandonment. Birth control, though criminalized under the Comstock Law, became increasingly available. By the 1930s, about fifteen manufacturers were selling a half million condoms per day at an average price of eight cents each. The recognition of women's sexual desire also transformed marriage. Good Housekeeping magazine introduced its readers to Freud's concept of libido in 1915, describing it as a "self-propelling torpedo" demanding "every kind of sensory gratification." This acknowledgment of female sexual desire as natural and healthy, combined with reliable contraception, allowed women to pursue sex for pleasure while still meeting family and work obligations. By mid-century, it was increasingly accepted that women could pursue sex for enjoyment, protected by contraceptives. By the 1970s, the legal landscape had dramatically changed. The Rape-Your-Wife Privilege was gradually eliminated across the United States, though not without resistance. In 1979, California state senator Bob Wilson infamously asked a group of women lobbyists: "If you can't rape your wife, who can you rape?" The family transformed from what one scholar called an "Assyrian-style discipline chamber" to a space where violence and sexual abuse were increasingly forbidden. Today's family structures continue to evolve, embracing arrangements that veer from narrow, oppressive models, including same-sex couples adopting and raising children, and interracial marriages that have more than doubled in the past three decades.

Chapter 2: Homosexuality: From Criminal Perversion to Protected Status

In the early 20th century, homosexuality was viewed not merely as sinful but increasingly as a dangerous mental illness. The medicalization of homosexuality transformed it from a sinful act into a pathological identity. Gay men were portrayed as naturally inclined toward violence and perversion. This characterization worsened the visceral disgust homosexuality already elicited in much of the straight population. As philosopher Martha Nussbaum observed, male homosexuality provoked disgust because it threatened the idea of male impenetrability - "the idea of semen and feces mixing together inside the body of a male is one of the most disgusting ideas imaginable." The words "homosexual" and "heterosexual" were invented in 1869 by Hungarian writer Kàroly Mària Kertbeny. By the turn of the 20th century, researchers like Richard von Krafft-Ebing were cataloging homosexuality alongside other "perversions" in works like Psychopathia Sexualis. Krafft-Ebing blamed homosexuality on a hereditary degeneration of the nervous system, arguing that homosexuals should be treated medically rather than imprisoned. This "pathologizing discourse" bred self-hatred among homosexuals. As historian Jeffrey Weeks noted, "Law and its penalties made homosexuals into outsiders, religious residues gave them a high sense of guilt, and medicine and science gave them a deep sense of inferiority." During the Cold War, homosexuality became linked with national security threats. In 1950, after Senator Joseph McCarthy claimed communists had infiltrated the State Department, department security head John Peurifoy revealed that ninety-one homosexuals had been fired in the previous three years. "Commies and queers" were framed as two parts of the same threat. A Senate subcommittee report concluded that "the pervert is easy prey to the blackmailer" and that homosexuals' "lack of emotional stability" and weak "moral fiber" made them "susceptible to the blandishments of the foreign espionage agent." In 1953, President Eisenhower signed Executive Order 10450, which added "sexual perversion" as grounds for dismissal of any federal employee. The resulting purge of gay federal employees lasted for two decades. About five thousand suspected gay employees were fired, and many more resigned to avoid disgrace. The FBI maintained extensive files on suspected homosexuals, and even a rumor of homosexuality could end a career. The tide began to turn in the late 1960s. The 1969 Stonewall Uprising in New York City's Greenwich Village marked a watershed moment when patrons of a gay bar fought back against police harassment. That same year, a federal appeals court ruled in Norton v. Macy that "immorality" alone was not grounds for dismissal from government employment. In 1973, the American Psychiatric Association removed homosexuality from its list of mental disorders. The legal transformation accelerated in 2003 when the Supreme Court, in Lawrence v. Texas, struck down remaining sodomy laws. Justice Anthony Kennedy wrote that intimate same-sex relationships deserve the same protections as those between heterosexuals. By 2015, same-sex marriage was legal in all fifty states. Even the pope now says that homosexuals should not be marginalized: "If a person is gay and seeks God and has good will," said Pope Francis in 2013, "who am I to judge him?" The transformation from criminalization to protected status represents one of the most dramatic legal and social shifts of the past century.

Chapter 3: Children and Vulnerability: The Construction of Innocence

The early 20th century witnessed a gradual transformation in how society viewed children's sexuality and vulnerability. In the 1880s, only the youngest girls were considered incapable of consenting to sex. The age of consent in England and the US was typically ten or twelve, with Delaware setting it at just seven. Girls above these ages who had sex did so legally as adults. If they consented, even with men many times their age, no rape of any kind resulted under the law. A shifting coalition of religious and early feminist reformers campaigned to raise these ages. In 1885, after journalist W.T. Stead published a sensational (and largely fabricated) series about child prostitution called "The Maiden Tribute of Modern Babylon," Britain's Parliament raised the age of consent to sixteen. American reformers followed suit, arguing that young women migrating to cities for factory work needed protection from predatory men. Within a few decades, every state made it illegal for anyone to have "carnal knowledge of a female child" under sixteen or eighteen. However, these laws contained troubling exceptions. Only underage girls with "chaste character" could be statutorily raped. If they had already "sampled the erotic fruits of urban life," men were free to prey on them without legal consequence. What began as an effort to protect young women became another tool for examining, judging, and controlling female sexuality. The "chaste character" exception would not be completely purged from US statutory rape laws until 1998. By the late 1980s, a dramatic shift occurred when children themselves began to be charged with sex crimes. In 1989, twelve-year-old Josh Gravens touched his eight-year-old sister's genitals in what he later described as "experimentation." His sister told their mother, who contacted a Christian counseling center for advice. This triggered a chain reaction: the counseling center called police, who arrested Josh the next day. He spent three and a half years in prison for aggravated sexual assault and was placed on the state's public sex-offender registry until at least 2021. This trend of criminalizing children for sexual behavior emerged during a period of heightened panic about child sexual abuse. According to a 2009 Justice Department analysis, more than one-third of those "known to police" for committing sex offenses against minors are juveniles themselves. Half are between fifteen and seventeen, but about one in eight are younger than twelve. Young children - the very people society seeks to protect due to their vulnerability - now make up a substantial portion of those condemned as child predators. The late 1980s also saw the rise of sex-offender registries. Initially created as a resource for police to track "usual suspects" in sex crimes, these registries expanded dramatically in the 1990s. The 1994 Jacob Wetterling Act established a national database of sex offenders, and by the end of the decade, every state had created its own registry. By 2006, all states had registries accessible to the public on the Internet. Today, more than 750,000 people are on sex-offender registries in the US, including many juveniles. Despite their popularity, research shows that sex-offender registries have not made communities safer. A 2011 University of Chicago study concluded: "I find little evidence to support the effectiveness of sex offender registries, either in practice or in potential. Rates of sex offense do not decline after the introduction of a registry or public access to a registry via the Internet, nor do sex offenders appear to recidivate less when released into states with registries." Meanwhile, the lives of hundreds of thousands of people, including many who posed no danger to children, have been ruined by these measures.

Chapter 4: Obscenity Law: The Contested Boundaries of Expression

The regulation of sexual expression through obscenity law has been one of the most inconsistent and emotionally charged areas of legal development. Throughout the 20th century, courts struggled to define what constitutes "obscenity" and why it should be regulated at all. The result has been a patchwork of contradictory rulings that often reflect judges' personal discomfort with sexual material rather than coherent legal principles. In 1933, when considering the alleged obscenity of James Joyce's Ulysses, New York judge John M. Woolsey applied what has since been called the "erection test." Seeking to discover whether the book would cause readers to have "sexually impure and lustful thoughts," Woolsey consulted his own genitals and those of two trusted male friends. If their penises reacted with interest while reading Ulysses, then government authorities could continue to ban the book. Fortunately for subsequent generations of literature students, Ulysses had no visible effect on the three readers, and the book was released after more than a decade of suppression. The legal standard that eventually emerged for obscenity was equally subjective: If, applying community standards, a work excites an average person's "prurient," "morbid," or "shameful" interest in sex (rather than "good, old-fashioned, healthy" sexual appetites), is patently offensive, and accomplishes nothing other than causing sexual arousal, then it can be outlawed. How to distinguish between "morbid" and "healthy" sexual appetites was never adequately explained, leaving judges and juries to improvise. Since 1957, the question of whether something can be labeled obscene has largely turned on whether it fits the "standards" of a particular locality. As the Supreme Court explained, the good citizens of Maine or Georgia should not have to "accept public depiction of conduct found tolerable in Las Vegas or New York City." The Internet has erased any rational basis for this standard, as anything can be viewed from anywhere, yet the local community standard persists. The distinction between pornography and prostitution has been equally problematic. In 1987, porn producer Harold Freeman was convicted of pimping for hiring people to have sex in his film Caught from Behind, Part II. However, the California Supreme Court overturned his conviction, holding that paying people to have sex on camera was protected under the First Amendment because Freeman did not pay for his own or the actors' "gratification." If no camera had been rolling, or if the actors had actually enjoyed the sex, then each time they were "caught from behind" on film they would have been engaging in prostitution. The regulation of sexual expression has often been used as a tool of political repression. In 2005, Florida website operator Chris Wilson found himself in extremely hot water for retransmitting images from the Second Gulf War that were embarrassing to the US military. His website featured not only explicit sexual imagery but also hundreds of gory pictures of dead and injured Iraqis uploaded by American soldiers. Wilson was arrested and charged with three hundred counts of obscenity, facing the possibility of spending the rest of his life in prison. Through a baseless prosecution brought solely to suppress evidence from a war, the army achieved its goal of shutting down the site. In recent years, new challenges have emerged with the advent of "revenge porn" - the non-consensual sharing of intimate images. In 2014, the UK passed a law allowing up to two years in jail for distributing "private sexual images of someone without their consent and with the intention of causing them distress." Israel also classifies revenge porn as a sex crime, as do about fifteen American states. These laws represent a shift toward regulating sexual expression based on consent and harm rather than abstract notions of obscenity.

Chapter 5: Consent Revolution: Redefining Sexual Violence

The concept of consent has undergone a radical transformation over the past century, particularly regarding sexual violence against women. In the early 1900s, rape laws were structured around the notion that women frequently lied about sexual assault. Courts required evidence of utmost physical resistance, immediate reporting, and corroboration beyond the victim's testimony. A woman's sexual history was considered relevant to her credibility, and husbands were exempt from rape charges entirely. The feminist movement of the 1970s began challenging these assumptions. Activists established rape crisis centers, organized speak-outs, and pushed for legal reforms. Michigan passed the first comprehensive rape law reform in 1975, eliminating the resistance requirement, creating rape shield laws to protect victims' privacy, and recognizing degrees of sexual assault. By the 1980s, most states had adopted similar reforms, though implementation remained inconsistent. The concept of sexual harassment emerged during this period as women entered the workforce in greater numbers. In 1986, the Supreme Court recognized sexual harassment as a form of sex discrimination in Meritor Savings Bank v. Vinson. Justice William Rehnquist wrote that "unwelcome sexual advances" creating a "hostile or offensive working environment" violated Title VII of the Civil Rights Act. This ruling acknowledged that sexual coercion could occur without physical force, through power imbalances and intimidation. Campus sexual assault became a focal point in the 1990s. The 1992 Campus Sexual Assault Victims' Bill of Rights required schools to develop clear policies on sexual violence and provide support for survivors. In 2011, the Obama administration issued guidance reminding schools of their obligations under Title IX to address sexual violence, recommending a "preponderance of evidence" standard for campus disciplinary proceedings. This lower standard of proof (requiring only that it be more likely than not that misconduct occurred) sparked controversy but reflected a growing recognition that traditional criminal justice approaches often failed survivors. The #MeToo movement, which gained momentum in 2017, further transformed public understanding of sexual violence. By sharing their experiences on social media, survivors demonstrated the pervasiveness of sexual misconduct and the ways powerful men had escaped accountability. The movement led to the downfall of numerous high-profile figures in entertainment, business, and politics, and sparked new conversations about consent, power, and accountability. Legal definitions of consent have evolved toward an affirmative model, requiring active, ongoing agreement rather than merely the absence of resistance. California's 2014 "Yes Means Yes" law defined consent as "affirmative, conscious, and voluntary agreement" that can be revoked at any time. This approach recognizes that silence, incapacitation, or previous sexual history do not constitute consent. Despite these advances, significant challenges remain. Rape continues to be one of the most underreported crimes, with less than one-third of sexual assaults reported to police and even fewer resulting in conviction. Marginalized groups, including people of color, LGBTQ+ individuals, and those with disabilities, face additional barriers to justice. The legal system still struggles to address the full spectrum of sexual violence, particularly in cases involving intimate partners or acquaintances where physical evidence may be limited.

Chapter 6: From Criminalization to Rights: The Transformation of Sexual Law

The criminalization of sexual behavior has undergone dramatic shifts over the past century, reflecting changing social norms and institutional priorities. In the early 1900s, a wide range of sexual activities were criminalized, including fornication (sex between unmarried people), adultery, sodomy, and cross-dressing. These laws were enforced selectively, often targeting racial minorities, immigrants, and those perceived as sexually deviant. The mid-20th century saw the emergence of "sexual psychopath" laws, which allowed for the indefinite commitment of sex offenders to mental institutions. These laws, mostly written by the psychiatric community, defined the sexual psychopath as one whose "utter lack of power to control his sexual impulses" made him likely to attack "the objects of his uncontrolled and uncontrollable desires." By the 1960s, thirty states had such laws, which were applied not only to violent offenders but also to homosexuals, exhibitionists, and even a Minnesota father of six who was hospitalized for committing unspecified "sexual excesses" upon his wife. The sexual revolution of the 1960s and 1970s challenged many traditional sexual prohibitions. In 1965, the Supreme Court recognized a constitutional right to privacy in Griswold v. Connecticut, striking down a state law prohibiting the use of contraceptives by married couples. This right was extended to unmarried people in Eisenstadt v. Baird (1972) and to abortion in Roe v. Wade (1973). By the 1980s, laws against fornication and adultery were rarely enforced, though many remained on the books. The AIDS epidemic of the 1980s and 1990s brought new forms of sexual criminalization. Many states passed HIV-specific criminal laws making it a felony for HIV-positive individuals to engage in sexual activity without disclosing their status, regardless of whether transmission occurred or precautions were taken. In some states, HIV-positive individuals faced longer sentences for spitting on someone (which poses no risk of transmission) than they would have received for aggravated assault. The late 20th century also saw the expansion of sex offender registration and community notification laws. Following several high-profile child abductions and murders in the 1980s and 1990s, states began requiring convicted sex offenders to register with local law enforcement. The 1994 Jacob Wetterling Act established a national sex offender registry, and Megan's Law in 1996 required community notification when sex offenders moved into neighborhoods. These laws were further expanded by the Adam Walsh Child Protection and Safety Act of 2006. The 21st century has brought both continued criminalization and significant reforms. On one hand, sex trafficking has received increased attention, with the 2000 Trafficking Victims Protection Act and subsequent legislation creating new federal crimes and enhanced penalties. On the other hand, Lawrence v. Texas (2003) struck down sodomy laws nationwide, and states have begun reforming their HIV criminalization laws to reflect current medical understanding of transmission risks. Technology has created new frontiers for sexual criminalization. Sexting among teenagers has led to minors being charged with producing and distributing child pornography for sharing images of themselves. Revenge porn - the non-consensual sharing of intimate images - has prompted new criminal laws in many states. These developments highlight the ongoing tension between protecting vulnerable individuals from sexual exploitation and respecting sexual autonomy and privacy.

Summary

Throughout this historical journey, we've witnessed a fundamental tension between individual sexual autonomy and state control. From eugenic anti-miscegenation laws to sodomy statutes, from forced sterilization to obscenity prosecutions, legal systems have consistently sought to regulate intimate behavior in service of maintaining existing power structures. The law has functioned as both a weapon of oppression - criminalizing interracial relationships, homosexuality, and reproductive choice - and eventually, through hard-fought reforms, as a tool for expanding personal freedom and dignity. What emerges most clearly is that sex law never operates in isolation from broader social hierarchies. Sexual regulations have consistently reinforced racial supremacy, gender inequality, heteronormativity, and class privilege. Yet the historical arc also reveals the possibility of progress through persistent advocacy and changing cultural attitudes. The recognition of reproductive rights, the decriminalization of homosexuality, the development of sexual harassment protections, and the legalization of interracial marriage all demonstrate that seemingly immutable sexual regulations can eventually give way to more just frameworks. As we continue to navigate contemporary debates around consent, gender identity, and sexual expression, this history reminds us to question whose interests are served by current sexual regulations and to remain vigilant against using law to impose moral judgments that restrict fundamental human freedoms.

About Author

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Eric Berkowitz

Eric Berkowitz is a writer, lawyer and journalist. He is the author of Sex and Punishment: Four Thousand Years of Judging Desire. He has a degree in print journalism from University of Southern California and has published in The Los Angeles Times and The Los Angeles Weekly, and for the Associated Press. He was an editor of the West Coast's premier daily legal publication, The Los Angeles Daily Journal. He lives in San Francisco.

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