Senthorum Raj reviews the animating principles informing the criminalization of otherwise ethically justifiable sexual behaviour:
We tend to assume that law is objective and disembodied, but the story of the decriminalisation of homosexuality in the UK shows that, like the people who create it, it is in fact an emotional creature, animated by visceral human feelings — and as far as sexuality is concerned, the chief emotion at work is often disgust.
You don’t have to look very hard to see how much it was disgust, not a concern for morality or justice, that shaped the laws governing homosexual activity. In fact, in the UK, homosexuality was long deemed so perverse that to even speak of it in public would stain your character.
Criminal punishments for homosexual activity, which included the death penalty, thrived on disgust for centuries. Introduced by Henry VIII in 1533, the Buggery Act 1533 criminalised the “abominable vice” of anal sex between men. In his commentaries on the common law of England published in 1765, jurist William Blackstone described buggery as an “offence of so dark a nature” that “the very mention of [it] is a disgrace to human nature”. Colonial statutes (which are still in effect in a number of Commonwealth countries today) referred to sex between men as an “act against the order of nature”.
In 1895, writer Oscar Wilde was put on trial for “gross indecency”, a statutory offence introduced in 1885 to punish individuals who engaged in same-sex relationships, without having to prove they had anal sex. In sentencing Wilde for gross indecency, Justice Willsnoted:
The crime of which you have been convicted is so bad that one has to put stern restraint upon one’s self to prevent one’s self from describing, in language which I would rather not use, the sentiments which must rise in the breast of every man of honour who has heard the details of these two horrible trials.
Disgust, again, was the animating principle. In writing about the Wilde trial, philosopher and legal scholar Martha Nussbaum observes that disgust was not simply an excess or unintended consequence of prosecuting sexual offences; it was central to it. Criminal penalties were contingent on the extent to which the person, and the activity they engaged in, could elicit public disgust.
The observant might note that this remains salient today.
-Shiv
The focus on language in these citations is quite revealing. It was entirely possible to discuss homosexuality and other non-standard sexual topics in the 18th and 19th centuries, but you had to do it in another language – usually Latin (among the legal profession) or Greek (among the medical profession). Or both among classical scholars (Johann Winckelmann was a notorious 18th century classical art historian, and also a prominent homosexual – he pretty much set the mould for normalising academic discourse on the subject). If you could cloak yourself in the mantle of respectable intellectual discourse then you had considerably more leeway. When Richard von Kraft-Ebing, the famous German psychologist and jurist, revealed his own homosexuality and argued for reforms in the law during an address to a convention of German legal scholars, he was told that he could finish his lecture as long as he finished it in Latin rather than German. It is not an accident that most of our language for sexual diversity thus derives from Latin and Greek.
But it wasn’t just ancient languages. Scandalous sexual content in nineteenth century novels was often written in Italian or French, rather than English like the rest of the book, to protect the sensibilities of vulnerable readers from corruption. Apparently if you could read French or Italian you were already so corrupt as to be beyond help. There was a strong class-based assumption at play as well as a xenophobic one – cultured aristocrats were allowed to indulge if they did it quietly, but the working classes must be prevented from thinking about such vices at all costs, what with their complete lack of moral decency.
“We tend to assume that law is objective and disembodied … ”
I object to that thesis sentence. It is obvious that “law” has always been a tool of power. Objective? Ha.
@Raucous Indignation
Perhaps it is more accurate to say “we are taught” the law is objective yada yada. The “we” likely referring to those who benefit from the status-quo, since I suspect the people on the sharp end of the stick learn to distrust it quickly.
As you say, Shiv. We are taught all sorts of things. But even as a child I didn’t assume that half that crap was correct. The Magna Carta, for example, was a immense breakthrough as it guaranteed rights to someone other than the Monarch. That a person, any person, should have any rights at all was extremely radical at the time. Of course, those first people to have rights were themselves high level nobility that had the force of arms to truly strike back at the Monarch. We’ve made some small progress since 1216 CE. Rights are now extended in varying degrees to all sorts of people. Another few thousand years and we might get this right. Disgust and indignation and offence are usually just cover for things the powerful have already decided to do anyway.
From the article:
Later that day she saw a trans man and her head exploded scanners-style.
.
Or more seriously: I haven’t seen a single TERF, or for that matter most non-“feminist” run of the mill bigots even addressing the existence of trans men. For me that was always a useful way to spot bigots when the bigotry wasn’t too overt.