Introduction
Eric Berkowitz's "The Boundaries of Desire" takes readers on a journey through the complex and often troubling history of sex and the law in America. This eye-opening book explores how laws governing sexuality, gender, and relationships have evolved over the past century, revealing deep-seated biases and injustices that have persisted throughout much of American history.
Berkowitz examines how male-dominated legal systems have often failed to protect women, children, and minorities from abuse and discrimination. He sheds light on the ways in which outdated laws and societal attitudes have shaped our understanding of sex, gender, and identity, often with devastating consequences for those who don't conform to traditional norms.
Through a series of compelling examples and case studies, "The Boundaries of Desire" challenges readers to think critically about the relationship between law and sexuality, and how this relationship has impacted countless lives throughout American history.
The Legal Oppression of Women in Marriage
For much of American history, marriage was far from the romantic ideal we often envision today. Instead, it was a legal contract that heavily favored men, giving husbands nearly complete control over their wives' lives.
Marital Abuse and Rape
One of the most shocking aspects of historical marriage laws was the lack of protection for women against abuse from their husbands. Courts rarely took serious action when married women were beaten or raped by their spouses. Berkowitz provides a disturbing example from 1874 in North Carolina, where a man named Richard Oliver whipped his wife with switches because he didn't like the bacon she had prepared for breakfast. His punishment? A mere $10 fine.
Even more horrifying was the existence of the "marital rape exemption" in both the United States and the United Kingdom. This law essentially gave husbands the right to rape their wives, as it was considered a wife's duty to provide sex whenever her husband wanted it. Shockingly, this law wasn't abolished in the UK until 1991 and in the US until 1993.
The Slow Path to Freedom
It wasn't until the second half of the twentieth century that women began to gain more autonomy within marriage. Several factors contributed to this shift:
Women entering the workforce: This gave women more financial independence, allowing them to be less reliant on their husbands for basic necessities.
Changing attitudes toward relationships: As women gained more freedom, they could choose partners based on mutual attraction rather than just financial security.
Birth control: The development of reliable contraception allowed women to delay pregnancy, giving them more control over their bodies and lives.
These changes marked a significant turning point in the struggle for women's rights, but as Berkowitz shows, there was still a long way to go in terms of legal protection and equality.
The Failure of Male-Dominated Courts
One of the most troubling themes in "The Boundaries of Desire" is the consistent failure of male-dominated courts to protect women from sexual harassment and abuse. Berkowitz reveals how deeply ingrained sexist attitudes have influenced legal decisions, often to the detriment of female victims.
Victim-Blaming in Rape Cases
Until the mid-twentieth century, about half of American female rape victims ended up in prison themselves. This shocking statistic highlights the pervasive victim-blaming mentality that existed in the legal system. Many male judges held the misguided belief that women secretly wanted to be raped, leading them to doubt victims' credibility and even punish them for speaking out.
The author provides a disturbing quote from 1736 by Lord Matthew Hale, Chief Justice of England, who stated that rape was "easy to perpetrate, hard to prove, and easy to defend against if one was accused of it." This attitude persisted for centuries, making it incredibly difficult for women to seek justice.
The Impact of Relationships on Credibility
Berkowitz also explores how the relationship between a victim and her attacker influenced the perceived credibility of rape accusations. Courts were less likely to believe a woman's claims the closer her relationship was to the perpetrator. For example, in a 1984 case in North Carolina, a man raped his girlfriend when she tried to break up with him. The court didn't consider this assault to be rape due to their prior relationship, and the case was dropped.
Workplace Harassment
As women entered the workforce in greater numbers, sexual harassment became a significant issue. However, courts often failed to protect women from abusive bosses and coworkers. Berkowitz cites a 1975 case involving two women who worked at the pharmaceutical company Bausch and Lomb. When they tried to sue the company after their boss made sexually inappropriate comments and advances, the court suggested that the boss had done nothing wrong, merely "[satisfying] a personal urge."
These examples illustrate how deeply entrenched sexist attitudes were in the legal system, making it extremely difficult for women to find justice and protection under the law.
The Law's Failure to Protect Children
Berkowitz's book also delves into the troubling ways in which the legal system has failed to protect children from sexual abuse, while sometimes unjustly accusing children of sexual offenses themselves.
The Catholic Church Scandal
One of the most high-profile examples of this failure is the widespread sexual abuse scandal within the Catholic Church. Berkowitz notes that in the United States alone, over 17,000 underage victims have accused some 6,000 Catholic priests of sexual abuse. Despite the scale of these allegations, few of the accused priests have been registered as sex offenders, and many cases against them have been dropped.
Misjudging Teenage Victims
The author also highlights how courts have often failed teenage victims of sexual abuse by misjudging their relationships with adult perpetrators. Shockingly, as late as 1998, US law stated that underage girls could only be considered victims of rape if they had no prior sexual experience. This led to cases where rapists were not prosecuted because their victims had previously been sexually active.
Berkowitz provides a disturbing example from 1914, where a man admitted to raping a 14-year-old girl but was declared innocent by the courts because the girl had chosen to follow him into his office. This kind of victim-blaming mentality has persisted for far too long in the legal system.
Unjust Accusations Against Children
In a troubling twist, Berkowitz also explores how children themselves have sometimes been unfairly targeted in cases of sexual assault. He notes that in the late 1980s, a paranoia developed around children who displayed aggressive sexual behavior, with many believing these children would grow up to be sex offenders.
This led to children being categorized with legal labels meant for adults. According to a 2009 analysis by the US Justice Department, most people registered as having committed a sexual offense against a minor were themselves minors. Berkowitz shares the shocking example of a 12-year-old boy who, in 1996, was required to register as a sex offender after giving his younger stepbrother a bath.
These cases demonstrate the complex and often misguided ways in which the legal system has approached issues of child sexuality and abuse, often failing to protect the most vulnerable members of society.
The Criminalization of Homosexuality
Berkowitz's book provides a sobering look at the historical treatment of homosexuality in American law and society. For much of the 20th century, homosexuality was not only stigmatized but actively criminalized and pathologized.
Homosexuality as a "Mental Illness"
In the first half of the 20th century, homosexuality was widely considered a mental illness that needed to be cured. Berkowitz describes how one popular theory suggested that homosexuality resulted from defects in a person's nervous system, causing them to "misdirect" sexual energy toward members of the same sex.
This medicalization of homosexuality had severe consequences. Gay men, if arrested, were often hospitalized or placed in mental institutions. Sodomy laws, which criminalized anal sex, were enforced not only in the United States but also in many European countries, including Germany, Britain, Sweden, Austria, and Denmark.
Targeting Lesbians
While much of the focus was on gay men, lesbians also faced discrimination and legal persecution. Berkowitz notes that lesbians were often considered too masculine and were believed to be prone to committing crimes of passion. In some places, such as Chicago, it was even a crime for women to wear clothes typically associated with men in public.
The Fight for Gay Rights
It wasn't until the 1980s that the gay community began to make significant strides in calling for equal rights and protection under the law. Berkowitz explains how the AIDS crisis, which was initially and erroneously associated exclusively with the gay community, paradoxically helped to galvanize the fight for gay rights.
As the community fought against misconceptions about AIDS, their activism spilled over into a larger call for equal rights for gays and lesbians. This movement gained momentum over the following decades, leading to significant legal victories:
- In 2003, the US Supreme Court struck down sodomy laws.
- By January 1, 2015, 36 American states had legalized same-sex marriage.
- In the summer of 2015, the Supreme Court ruled that same-sex marriage was legal in all 50 states.
These changes represent a dramatic shift in the legal status of LGBTQ+ individuals in America, though Berkowitz is careful to note that discrimination and challenges still persist.
The Complex Legal Status of Nudity and Sex Work
Berkowitz's exploration of the legal boundaries of desire extends to the often contradictory ways in which nudity and sex work are treated under the law.
Nudity: Art or Crime?
The author points out that the legality of nudity often depends on context and perception. After World War I, for example, performances by the famous dancer Isadora Duncan featured naked dancers modeled after Greek statues. These performances were generally tolerated and even celebrated as high art, invoking themes of the ancient world where sexuality was less restricted.
In contrast, erotic dancing in strip clubs was considered an unacceptable form of nudity. Berkowitz describes how American law enforcement would often shut down strip clubs, sometimes even sending riot squads to arrest dancers and owners for "criminal conspiracy to violate public indecency laws."
The Pornography Paradox
One of the most striking contradictions Berkowitz highlights is the legal distinction between pornography and prostitution. In many countries, including parts of the United States, pornography is legal while prostitution is forbidden. Yet, as the author points out, both involve consenting adults being paid for sex.
The only real difference is the presence of a camera. Berkowitz shares the fascinating case of porn producer and director Harold Freedman, who was accused of pimping when he hired models for explicit sexual acts in his film "Caught from Behind Part II." However, the California Supreme Court dismissed the case, ruling that it wasn't prostitution because it happened in front of a camera. The court's logic was that the models were merely paid to simulate pleasure as part of their work.
This legal distinction creates a bizarre situation where a paid sexual encounter isn't considered prostitution if it's being filmed, highlighting the often arbitrary nature of laws surrounding sex and sexuality.
The Stigmatization of Sex Work
Berkowitz devotes significant attention to the historical and ongoing discrimination against sex workers, while also exploring how sex work has often been a means of survival for many individuals.
Historical Persecution of Sex Workers
In the early 20th century, prostitution was viewed not just as immoral but also as a public health threat. Sex workers were often thought to have serious mental conditions and were deemed unfit to reproduce. This discriminatory attitude led to horrific human rights violations in some countries. For example, between 1930 and 1970, an estimated 60,000 female sex workers in Sweden were sterilized without their consent.
Modern Challenges
Even today, different forms of sex work face varying degrees of criminalization. Berkowitz discusses how some therapists provide paid sexual services to clients with psychological or physical disabilities as part of their treatment. While this could be considered a legitimate part of their work, in countries like France, some lawyers and government officials still seek to prosecute these therapists.
Sex Work as Survival
Throughout history, many women have turned to sex work as a means of survival, particularly during times of hardship. Berkowitz provides the sobering example of World War II, where sex work was often the only way for many women to escape poverty and hunger.
In a particularly dark chapter of history, the author reveals how the Nazis encouraged prostitution in concentration camps, ostensibly to increase productivity among male prisoners. Women were selected based on race and promised food and safety in exchange for their cooperation. Berkowitz shares the harrowing account of Magdalena Walter, a German prisoner who was forced to serve as a prostitute at the Buchenwald concentration camp.
These examples underscore the complex and often desperate circumstances that have led individuals to engage in sex work throughout history, challenging simplistic moral judgments and highlighting the need for more nuanced approaches to legislation and social support.
Racial Discrimination in American Law and Society
A significant portion of "The Boundaries of Desire" is dedicated to examining how non-white people have faced discrimination in both American society and its legal system, particularly in matters related to sexuality and relationships.
Post-Slavery Paranoia
Even after the legal abolition of slavery in 1863, white Americans found new ways to oppress and discriminate against the black community. Berkowitz describes a widespread paranoia that developed, particularly in the South, about black men becoming sexual predators targeting white women. This irrational fear was exemplified by statements from influential white figures like George T. Winston, an educator who claimed that freedom had transformed black men into "brutes."
Interracial Relationships
This paranoia led to concerted efforts to keep white women away from black men. One of the most significant legal manifestations of this was the prohibition of interracial marriage, which remained in place until 1967. Berkowitz explains how whites justified this ban by claiming that blacks had "inferior blood" and that interracial offspring threatened both the white race and "Western civilization."
School Desegregation
The author also explores how racial tensions played out in schools during the civil rights era of the 1950s and 1960s. He recounts the infamous incident in Arkansas in 1957 when a court ordered a school to admit nine black students. The response was a violent demonstration by white parents, with armed troops attempting to prevent the black children from entering the building. Some white students were so frightened that they jumped out of the school's windows.
Anti-Asian Racism
Berkowitz doesn't limit his discussion to anti-black racism. He notes that before World War II, much of the anti-Asian racism in America was directed at Chinese people. Chinese men were often stereotyped as potential rapists, while Chinese women were believed to carry sexual diseases that were deadly to white men but to which they themselves were immune.
These examples illustrate how deeply ingrained racism has been in American society and its legal system, often intersecting with issues of sexuality and relationships in complex and harmful ways.
The Evolving Understanding of Sexuality and Gender
Throughout "The Boundaries of Desire," Berkowitz traces how societal understanding of sexuality and gender has evolved over time, often in ways that challenge traditional legal and social norms.
The Impact of Birth Control
The development of reliable birth control methods in the mid-20th century had a profound impact on women's sexual freedom and autonomy. Berkowitz explains how contraception allowed women to delay pregnancy, giving them more control over their bodies and lives. This newfound freedom enabled women to explore relationships and sexuality on their own terms, while also providing more opportunities to further their careers.
Changing Attitudes Toward Marriage
As women gained more independence, both financially and socially, attitudes toward marriage began to shift. Berkowitz notes that women could increasingly choose partners based on mutual attraction rather than just financial security. This represented a significant departure from the historical view of marriage as primarily an economic arrangement.
The Recognition of Sexual Harassment
The author explores how the concept of sexual harassment evolved as more women entered the workforce. While early court cases often dismissed women's complaints of inappropriate behavior from male colleagues or superiors, societal awareness of the issue grew over time. Berkowitz traces how this awareness gradually led to changes in workplace policies and legal protections, though he notes that progress has been slow and inconsistent.
The Emergence of LGBTQ+ Rights
One of the most significant shifts in recent decades has been the growing acceptance and legal recognition of LGBTQ+ individuals. Berkowitz details how the gay rights movement gained momentum in the 1980s, spurred in part by the AIDS crisis. He traces the legal battles that led to the decriminalization of homosexuality, the recognition of same-sex partnerships, and eventually, the legalization of same-sex marriage across the United States.
Ongoing Challenges
Despite these advancements, Berkowitz is careful to point out that many challenges remain. He discusses ongoing debates about transgender rights, continuing discrimination against LGBTQ+ individuals in many areas of life, and the persistence of outdated attitudes about sexuality and gender in some legal and social contexts.
Conclusion: The Need for Legal Reform
In concluding "The Boundaries of Desire," Berkowitz reflects on the long and often troubled history of sex and the law in America. He emphasizes that while significant progress has been made in many areas, there is still much work to be done to create a truly just and equitable legal system when it comes to matters of sexuality, gender, and relationships.
The author argues that many of the problems he's identified throughout the book stem from the fact that laws governing sexuality have historically been written and enforced primarily by men, often to the detriment of women, children, minorities, and anyone who doesn't conform to traditional sexual norms.
Berkowitz calls for a reevaluation of many of our laws and legal practices surrounding sex and relationships. He suggests that we need to move away from outdated moral judgments and instead focus on principles of consent, equality, and individual freedom. This might involve:
- Strengthening protections against sexual harassment and assault
- Reforming laws around sex work to prioritize the safety and rights of sex workers
- Continuing to expand and protect LGBTQ+ rights
- Addressing racial biases in the enforcement of laws related to sexuality
- Improving sex education to promote healthier attitudes toward sex and relationships
The author also emphasizes the importance of having diverse voices involved in creating and enforcing laws related to sexuality. He argues that including more women, people of color, and LGBTQ+ individuals in the legal system could help address many of the biases and blind spots that have led to injustice in the past.
Ultimately, "The Boundaries of Desire" serves as both a sobering look at our legal and social history and a call to action for creating a more just and equitable future. Berkowitz challenges readers to think critically about the relationship between law and sexuality, and to consider how we can create a legal system that truly protects and respects the rights and dignity of all individuals, regardless of their gender, race, or sexual orientation.
By exposing the flaws and injustices of the past, Berkowitz hopes to inspire a new generation of lawmakers, judges, and citizens to approach issues of sex and the law with greater empathy, understanding, and commitment to equality. Only by learning from our history, he argues, can we hope to create a future where the boundaries of desire are defined not by outdated laws and prejudices, but by mutual respect, consent, and human dignity.