The Illogic of All Sex Laws

A new book traces a century of legislative prudery.

Boundaries of Desire.

Illustration by Ed Luce

When the proprietor of a Florida-based pornographic website was put on trial in 2008, he was accused of violating community standards. To prove that the operator had done nothing of the kind, his lawyer exhibited Google search data for the region, showing that residents were more likely to go online looking for “sex” than for “apple pie.” Pornography, this lawyer implied, was central to community standards, whether or not the community members were willing to admit it. In the process, he suggested that the pleasures we deny ourselves—like those that we would refuse to others—can reveal a great deal about the forces that move us. Maybe that’s why the easiest way to tell a story about sex is to tell a story about repression.

This, at any rate, is the premise of author and attorney Eric Berkowitz’s new book, The Boundaries of Desire. Over the course of seven chapters, Berkowitz sets out to explore the last century of sex law, focusing most of all on the ways that our civilization restrains the needs of some while punishing the passions of others. Attentive to changing norms but rarely content with present pieties, he surveys attitudes toward prostitution, homosexuality, pornography, and more. Throughout, he treats desire as a force that has “always carried outsize significance” because it “burns at the intersection of existence, identity, and power.”

Indeed, sex is the most personal of passions, but it is also the one in which the personal becomes interpersonal. Intercourse, as philosophers of sex have known for years, is never far from discourse, and pillow talk may be just as important as everything that precedes it. Speaking about sex by narrating the many attempts to silence it is therefore an almost deliberately paradoxical project. Alas, stories about repression are rarely the most engaging or—and this is the important thing where sex is concerned—the most satisfying. But Berkowitz is in the best of bad company. As he shows over and over again, censors and scolds have always found a cheap pleasure in the very things they seek to forbid.

No one knew this better than the notoriously moralistic 19th-century postal inspector Anthony Comstock. While promoting the law that would eventually bear his name, Comstock invited lawmakers to peruse an exhibition of the worst pornography the Victorian era had to offer, referring to it as his “chamber of horrors.” Displaying these pamphlets and pictures as objects that had to be forbidden, he gave his allies permission to look. Perversely, it was their very enjoyment of these obscenities, Berkowitz suggests, that convinced them Comstock was in the right. “Fully sated,” Berkowitz writes, “the lawmakers approved Comstock’s bill.”

Berkowitz revels in the similar hypocrisy of Comstock’s sanctimonious descendants, always attentive to the delight they take in the things that supposedly disgust them. In many cases, his observations derive as much from the way his subjects discuss sex as from what they say about it. He observes, for example, that the anti-porn activist Catherine MacKinnon opens her book Only Words “on a perversely smutty note,” giving off “a strong whiff of the aficionado” as she describes overwhelming scenes of sexual violence. And Kenneth Starr’s “graphically detailed report” on the activities of President Clinton deserves “an award for prurience wrapped in sanctimony.” It was, Berkowitz writes, “guilt-free sex reading for the ruling class.”

Because sexual conventions tend to shape legislation rather than the reverse, sex law always lags behind our actual sex lives. As Berkowitz asserts, this leaves the former in a perpetual state of crisis. Time and time again, Berkowitz shows that sex laws are like ghosts, tormenting the living long after their own times have passed. “Once sex-restrictive laws are adopted,” he observes, “they are rarely repealed, and if they don’t work as planned then they are deployed for other purposes.” By way of example, he points to statutory rape laws, showing they have frequently targeted those they’re ostensibly intended to protect. Surveying a host of early-20th-century cases, he writes that these regulations “were used in a series of efforts to police young women’s voluntary sexual habits.” Meanwhile, the adult men involved “were usually given mild or no penalties when courts even suspected that the girls had ever been sexually active.” 

A century later, Berkowitz suggests that such problems have, in some ways, only intensified, especially where rape is concerned. Despite the rise of rape-shield laws—which prevent defense attorneys from interrogating victims about previous sexual experiences—“slut shaming is alive and well (if inconsistently applied) in the courts.” Likewise, sexual assault cases on college campuses are, Berkowitz observes, more often conducted according to exceptions than rules, leading to “botched investigations, cynical cover-ups … and, inevitably, lawsuits by aggrieved students on both sides of the disputes who claim they were not given a fair shake.”

Eric Berkowitz
Author Eric Berkowitz.

Photo by Jennifer Berkowitz

Far from protecting victims, these and other flexible judicial structures further victimize those who are already fragile. Sex trafficking roundups, for example, rarely if ever capture actual sex traffickers. Describing one such operation that took place during the 2014 Super Bowl, Berkowitz notes that while “many alleged prostitutes … were arrested,” none of the criminals supposedly exploiting them were brought in. It was, in the end, nothing more than “a traditional but expensive vice roundup.” These stings are, he suggests, little more than PR opportunities for beleaguered law enforcement agencies.

In example after example, Berkowitz shows that sex law frequently functions more as a pretext for oppression than as a repressive force in its own right. It’s worth asking, then, why the law is what matters where sex is concerned. The book suggests that regulations governing sex are always outmoded and that those who enforce them most aggressively ignore their particulars. Why focus on sex law if it has so little to do with the punishments we mete out to others for the ways they live their lives, never mind the ways we conduct our own?

Berkowitz never manages to address this question. Perhaps that’s why his book doesn’t quite hold together, despite his considerable erudition and his immense repertoire of scandalous stories. Acknowledging this “shortcoming” (his word) early on, Berkowitz proposes that it’s a consequence of his subject matter. He can only describe “the experiences of certain people, or the rules of some groups at certain points in time.” Ultimately, The Boundaries of Desire lacks a clear narrative because sex law itself is inconsistent and illogical. In other words, it’s precisely where the book’s argumentative arc crumbles that its real argument becomes clear: Sex law, Berkowitz shows, doesn’t make sense, and it never has.

Left with fragments that can only ever suggest larger truths, The Boundaries of Desire declines to offer a clear theory of prohibition. In its absence, questions accumulate: Why do we keep insisting on sex law if it keeps failing us? Why do we so often forbid the things we want the most? Berkowitz comes closest to answering these questions in his brief conclusion, when he suggests that sex law represents a countervailing drive, an urge that runs opposite the sexual. Citing Wendell Berry, he proposes that there’s a thrill to forbidding others what they desire. There may be something to this emphasis on the self: Sex is the most individual of passions, but it’s also the one that most urgently forces us to reach out to others, however clumsily. It renders our boundaries fuzzy, making us both more and less than ourselves.

Perhaps sex law is an attempt to reaffirm the fragile borders that keep us from the world, and from others. It stabilizes the self by telling us that we are complete, that we do not want. We enact prohibitions not because they make sex hotter but because we’re afraid we’ll shove our hands into its fire, and all that we are will burn away.

The Boundaries of Desire: A Century of Good Sex, Bad Laws, and Changing Identities by Eric Berkowitz. Counterpoint.

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