Explain the assumptions behind American laws concerning “sexual psychopaths” and discuss whether these assumptions are valid in light of current sexological knowledge
The assumptions behind American laws concerning sexual psychopaths date back to the destruction of the biblical cities of Sodom and Gomorrah. Sodomy originally referred to only two sexual acts: anal intercourse (either between two men or a man and a woman, [women who penetrate each other anally with dildos was yet to be considered]) or bestiality (sexual intercourse between a human and an animal of the opposite sex). Medieval peoples believed that bestiality could lead to the conception of half-human, half-beast offspring, while sodomy was condemned because the devil was thought to engage in such activity with witches (Evans, 1978).
In England a 1781 court case determined that there needed to be an emission of semen for an inserter to be charged with sodomy. Thus “sodomy interruptus” could go unpunished (Painter, 2002). In the 20th century the meaning of sodomy shifted from engaging in acts that might create beasts and witches to any non-procreative sexual act. Perhaps it was a shift in hygienic practices that led the 1904 Georgia Supreme Court to decide that fellatio is a form of sodomy. In the 19th century bathing customs were such that performing fellatio was a rather remote consideration, leaving anal sex to be the preferred (non-procreative) sexual activity.
Meanwhile, the courts took many more years to create legislation banning Lesbian erotic activity. In 19th century England sex between women was viewed as an oxymoron, while some United States courts determined that without a penis, there could be no sodomy. In 1927 the Wisconsin Supreme Court overturned a sodomy conviction for cunnilingus because state law only delineated the oral manipulation of the “organ of any male person” (Painter, 2002).
Same-sex eroticism moved from being a legal consideration to what some doctors called, “erotomania,” a mental sexual psychopathology. Some of this may have been fueled by the work of 19th century German psychiatrist, Krafft-Ebing. In 1886 he authored, Psychopathia Sexualis wherein he meticulously detailed the dark origins and manifestations of the sexual pathologies of the day including homosexuality, fetishism, sadism and masochism. He regarded homosexuality as an “antipathetic sexual instinct” and discussed many cases of women as well as men (Brecher, 2000). By 1933 sodomy was viewed as so “abnormal” that a Pennsylvania court required a defendant to strip naked in front of the judge and jury to prove that he was “normal” (Painter, 2002)
When Kinsey’s 1948 and 1953 publications revealed that same sex attraction and erotic activity was far more common than previously thought, several states began to reform their sodomy laws. In California “sexual perverts” were no longer subject to sterilization and extreme psychopath laws were toned down in Massachusetts and South Dakota. Ultimately the critics of the psychopath statutes did much to legitimize non-procreative heterosexuality, while the media and national commissions “educated” the public about both "natural" and "perverse" sexual behaviors. At the same time, the psychopath literature stigmatized female and child victims of sexual assault and devised rigid definitions of homosexual activity (Freedman, 1987).
In 1955 the American Law Institute published a “Model Penal Code” that advocated the repeal of consensual sodomy laws, while retaining and expanding protections against unwanted sexual activity for children and for adults. Fifteen years later only Illinois and Connecticut had decriminalized consensual sodomy, while 86% of Americans continued to believe that same-sex erotic activity was "sometimes," "almost always," or "always" wrong (Levitt and Klassen, 1974).
Married heterosexual couples were the first to gain the right to privacy in matters of sexual intimacy when in 1957 the Ohio court denied a divorce to a woman who sought to end her marriage because her husband wanted to engage in oral sex. The court determined “the private moral relationships between husband and wife rests entirely in the minds of the two of them” (Painter, 2002)
Beginning in the early 1960s numerous United States courts ruled that restroom stalls, parked cars, and Gay bathhouses were legal places for the practices of consensual homosexual activity. What became a much harder reality to swallow was that consensual sodomy might be legally sanctioned in the privacy of a loving home. In 1982 Michael Hardwick and his partner were arrested for unlawful sodomy when a policeman gained entry into their Atlanta, Georgia home. Despite that local charges were dropped, an attempt to repeal our nation’s sodomy laws followed when in 1986 the United States Supreme Court heard Bowers vs. Hardwick. The court’s 5-4 decision found that nothing in the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy" (Sodomy Laws, 2002). Apparently granting privacy rights to practice sodomy in a loving home presumes a legitimate on-going affectionate relationship, something quite apart from the freedom to engage in fleeting pleasures in bars, parks, bathhouses, and in the back seats of cars (Painter, 2002).
Considering that the original sodomy laws were concerned with directing sexual activity towards “natural” reproductive purposes and that today a panoply of medical technologies are employed to enable non-sexual human reproduction, we certainly ought to question yesteryears’ notions of sexual psychopathology. There is absolutely no reason today to continue paying homage to the barbarian legal and medical responses to otherwise natural sexual instincts (Painter, 2002).
Ultimately, the sexual psychopath did much to redefine the boundaries of acceptable sexual behavior in modern America (Freedman, 1987). While Americans today may have a deepened sense of their sexual rights and privileges, we continue to live in a climate of sexual fear, anxiety, and misinformation. Sexual harassment lawsuits abound, gay and transsexual bashing frequently receives national media coverage, and every television and radio station is on red alert for the first signs of child sexual abuse/abduction. Despite America’s growing comfort with gay sexuality, bisexuality, and skimpy and provocative attire, there is much misinformation about normal sexual proclivities including masturbation, voyeurism and exhibitionism.
Today’s climate of fear and misinformation would lead many to presume that 24/7 BDSM is a form of sexual psychopathology despite that participants report that they are erotically and emotionally fulfilling. Anyone accused of an interest in adult-child erotica is regarded as a sure candidate for a long prison term followed by a lifetime of post-prison harassment. Men, who devote many hours to watching explicit media, downloading pornographic images and masturbating to these images, may be regarded by their wives as sexually psychopaths. Their wives may believe that they own their husbands’ bodies…and that engaging in such fantasy activity detracts from the marital bond. People who have multiple partners, either secretly or consensually might be regarded as sexual psychopaths because they cannot adjust to the eroticism of monogamous marriage. A modern day Krafft –Ebing would certainly have a field day attempting to deconstruct and codify the “psychopathological” behaviors practiced at today’s kink-positive sex parties.
While sexual psychopathologies originated out of fear that “unnatural” sex acts would lead to the production of beasts and witches, despite major advances in reproductive science including, residual fears and misinformation remain amongst us. While no one believes that anal sex is a reproductive activity of witches, today’s climate of fear regarding the transmission of HIV-AIDS has made it once again a both dreaded and highly charged act. Sadly, our judgments and fears have taken us around the block and back.
Brecher, E. M. The Sex Researchers: Expanded Edition. Specific Press: San Francisco, 1969, 1979, 2000.
Evans, A. Witchcraft and the Gay Counterculture, Boston: Fag Rag, 1978
Freedman, E.B. "Uncontrolled Desires": The Response to the Sexual Psychopath, 1920-1960. The Journal of American History 74:1 (June 1987), pp. 83-106.
Kinsey, A.C., Pomeroy, W.B., and Martin, C.E., Sexual Behavior in the Human Male. Philadelphia and London: W.B. Saunders Company, 1948
Kinsey, A.C., Pomeroy, W.B., and Martin, C.E., Gebhard, P. Sexual Behavior in the Human Female. Philadelphia and London: W.B. Saunders Company, 1953
Levitt, E.E, and Klassen, Jr. A., "Public Attitudes Toward Homosexuality: Part of the 1970 National Survey by the Institute for Sex Research," Journal of Homosexuality, 1:29-43, at 31 (1974).
Painter, G. “The Sensibilities of Our Forefathers: The History of Sodomy Laws in the United States”http://www.sodomylaws.org/sensibilities/introduction.htm, 1991-2002
Sex, Love, Relationship, and Pornography Addiction Resources
http://open-mind.org/Sex-Love.htm
Sodomy Laws: Bowers v. Hardwick, July 2002.
http://www.sodomylaws.org/bowers/bowers.htm