The Boundaries of Desire

Who does the law serve when its creators have been predominantly male? The answer reveals a troubling history of inequality and neglect.

1. Historical Marriage Inequities

For much of history, marriage placed women under the near-total control of their husbands. It was legally recognized as a contract that prioritized the needs and desires of men. This arrangement left women vulnerable to their spouse's abuse with little protection or recourse from the law.

Laws once sanctioned what today would be considered outright criminal behaviors. For instance, the concept of “marital rape exemption” legally permitted husbands to demand sexual acts from their wives, stripping women of autonomy in intimate settings. This exemption persisted until the 1990s, a shocking reminder of longstanding gender imbalances in the justice system.

The shift away from this oppressive framework only began in the 20th century when women gained financial independence through work. Birth control further enabled women to reclaim agency, fostering societal shifts in relationships, work, and sexuality. These advancements fundamentally altered marriage and women’s rights within it.

Examples

• Women could not legally accuse their husbands of rape until 1993 in the U.S.
• In 1874, a man in North Carolina was fined only $10 for severely beating his wife.
• Birth control in the 20th century gave women the tools to prioritize their choices and careers over traditional roles.

2. Rape Myths and Victim Blaming

For decades, the courts perpetuated damaging myths about rape and sexual violence. Key among these was the belief that women secretly desired unwanted advances. This notion allowed perpetrators to avoid justice while devastating the credibility of victims.

In many cases, victim-blaming took precedence over holding rapists accountable. Relationships between attackers and victims often influenced court decisions. For instance, rapes between romantic partners were dismissed on the basis that prior relationships invalidated claims of assault.

Even legal authorities reinforced sexist beliefs. Statements likening rape accusations to fabrications emerged from the highest levels of the judiciary. This mindset ensured that rape survivors were not only abandoned by the justice system but often vilified for seeking justice.

Examples

• Judges historically claimed women saying “no” really meant “yes.”
• In 1984, a North Carolina case dismissed a rape accusation involving a couple because they were dating.
• British Chief Justice Lord Matthew Hale reinforced rape myths in 1736, claiming rapes were trivial to prove or defend against.

3. Children Exploited by Flawed Protections

American law has often failed to protect children from sexual abuse while simultaneously criminalizing them unfairly. Over 17,000 children made abuse allegations against Catholic priests, yet most perpetrators avoided the label of sex offender and severe punishment.

In some cases, victims were deemed less credible because of prior sexual experiences. Laws as recent as the 1990s declared that only virginal minors could truly claim victimhood in rape cases. This failed to account for the power dynamic and predatory behavior that underpins such crimes.

Tragically, legal systems also falsely vilified young people. Paranoia about early sexual behavior led to children being unjustly labeled as offenders. Innocuous or misunderstood actions were treated as criminal, and those children faced lifelong consequences.

Examples

• A 12-year-old boy in 1996 was placed on the sex offender registry for giving his stepbrother a bath.
• US courts in 1914 exonerated a man who admitted raping a 14-year-old because she entered his office willingly.
• 6,000 Catholic priests faced sexual abuse allegations with limited legal retribution.

4. Homosexuality Once Criminalized

For much of the 20th century, homosexuality was viewed as a disease or criminal offense. Gay men were institutionalized or imprisoned, while laws similarly constrained lesbians by penalizing traits associated with masculinity.

Sodomy was a criminal act across numerous countries, from the United States to Denmark, subjecting LGBTQ+ communities to societal scorn and legal penalties. In Chicago, it was illegal for women to dress in men’s clothing; such codes further marginalized queer individuals.

The fight for equality began in earnest during the AIDS epidemic. The gay community's advocacy led to a broader fight for recognition and legal protections. As a turning point, sodomy laws were abolished nationwide in the U.S. in 2003.

Examples

• US law defined homosexuality as a mental illness until the late 20th century.
• In Chicago, wearing clothes of the opposite sex was punished as a crime.
• In 2015, the Supreme Court ruled same-sex marriage legal nationwide.

5. Art vs. Exploitation in Nudity

The tolerance of nudity in society varies depending on context, often exposing double standards. While nudity in art is celebrated, similar displays in other settings face harsh critiques or legal repercussions.

During the 20th century, performances like Isadora Duncan’s, inspired by ancient Greece, allowed nudity to be appreciated within cultural frameworks. However, dancers in strip clubs were arrested under charges of public indecency, underscoring society’s selective tolerance.

Perhaps one of the most perplexing instances of this disparity lies in prostitution versus pornography. Both involve paid sexual acts, but adding a camera to capture these transactions often exempts the participants from prosecution.

Examples

• Isadora Duncan’s naked dance performances after WWI were considered cultural art.
• Strip clubs in America were routinely shut down for public indecency.
• California courts ruled that pornography isn’t prostitution due to its artistic documentation.

6. Sex Work as Survival

The legal system has historically stigmatized and targeted sex workers, viewing them as impure or dangerous. In some countries, women involved in sex work were sterilized, reflecting deep societal prejudice.

Despite these judgments, prostitution has often offered women an avenue for survival during times of extreme hardship. In Nazi Germany, sex workers were used to boost morale among concentration camp prisoners, with promises of safety in return for their cooperation.

Stringent laws inadvertently make sex work unsafe. Efforts to decriminalize and legalize prostitution in countries like New Zealand and Germany have improved conditions for workers while reducing exploitation.

Examples

• Sweden sterilized 60,000 sex workers between 1930-1970.
• WWII sex work, like Magdalena Walter's, provided food security for many women.
• Legal sex work in New Zealand offers protections not granted to illegal prostitution.

7. Discrimination Against Black Americans

Even after the abolition of slavery, black Americans were often labeled as sexual predators in an attempt to uphold racial divides. Racist laws prevented interracial marriage and implicated black men in baseless sexual crimes.

School integrations during the 1960s civil rights movement demonstrated the extent of this prejudice. Black children faced hostility, including mobs and even armed resistance, while attending schools historically reserved for white students.

Other racial minorities also faced aversive treatment. In the early 20th century, intense discrimination targeted Chinese Americans, based on unfounded fears that they endangered white citizens through disease and deviance.

Examples

• Interracial marriage bans stood until 1967.
• Nine black students integrating an Arkansas school in 1957 were met with armed opposition.
• Early anti-Asian racism portrayed Chinese men as rapists and women as disease carriers.

Takeaways

1. Advocate for updated legislation that protects vulnerable groups, including women, children, and sex workers, from bias and exploitation.
2. Challenge myths and stereotypes in legal discourse and societal attitudes that perpetuate victim blaming or unequal treatment.
3. Support education on historical injustices to foster awareness and empathy, emphasizing the need for equitable reforms.