This follow-up to lawyer Berkowitz’s Sex and Punishment: Four Thousand Years of Judging Desire (2012) brings Western society’s continued attempt at regulating sexual mores to the present.
Sex, as the author pertinently grasps in this comprehensive survey that moves forward from around the turn of the 19th century, “burns at the intersection of existence, identity and power,” and the way we regard it tells a great deal about our society. Berkowitz covers the enormous changes that have swept sex law in the categories of family and marriage; homosexuality; minors; definitions of obscenity; rape and sexual harassment; and interracial sexual relations and marriage. In each chapter, the author reveals the way that power has been gradually relinquished and fear vanquished. He explores the intractable (until a groundbreaking 1984 decision in New York) legal doctrine of what Berkowitz calls the “Rape-Your-Wife Privilege,” which entitled a husband to force himself on what was legally his property; the increasing availability of birth control, which has allowed women agency over their bodies, especially significant to the health of working and poor women; the breaking of long-held stereotypes about black females being the “root cause of black poverty”; the defeat of what now appears to us astounding prejudice against “feebleminded” women who got pregnant and homosexuals as criminal and deserving of sterilization and incarceration; and how the hysterical terror of the sex offender prompted draconian residence-restriction laws. Sagely, Berkowitz throws some much-needed light on the still-shadowy definition of obscenity (for example, in public performance), pornography (“sexting” by minors, Clarence Thomas’ record of porn-video rentals), and, especially, “the limits of consent” (what constitutes rape in the college setting and who should deal with it). The author cogently exposes what he believes is “panic mentality” in many cases of rape and child molestation.
As laws and mores continue to change at a rapid pace, this engaging study offers helpful historical and legal explanations.