In our continuing consideration of the rights of the individual in a free society, we discussed in the last installment of this editorial series (February) the extent to which a person’s private sexual behavior is the subject of governmental control in America.
This nation was founded on the premise that each one of us is entitled to life, liberty and the pursuit of happiness; our democratic government was established to protect these rights and our Constitution guarantees them. Yet every state has statutes specifically designed to control the most personal, intimate acts of its citizens.
America is presumably the land of the free and the home of the brave. But our legislators, our judges and our officers of law enforcement are allowed to enter our most private inner sanctuaries—our bedrooms—and dictate the activity that takes place there.
We are free in a voting booth, in a stockholder’s meeting, a union hall, or a house of worship, but we are not free in bed. Our democracy, which prides itself on its permissiveness in almost every area of individual endeavor, has proven intolerably restrictive in matters of sex.
Our society’s repressive and suppressive antisexualism is derived from twisted theological concepts that became firmly imbedded in Christianity during the Dark Ages, several hundred years after the crucifixion of Christ, and spread and became more severe with Calvinist Puritanism after the Reformation. In the Old World, the people suffered under totalitarian church-state controls of both Catholic and Protestant origin and many of the early colonists in America came here in search of the religious freedom denied them in Europe. Our own founding fathers, well aware of the history of religious tyranny in other countries, established with the Constitution of the United States the concept of a separate church and state as the best means of assuring that both our religion and government would remain free, thus guaranteeing the freedom of the people.
Unfortunately, the seeds of religious antisexualism were already planted in the people themselves, however; in addition, through the centuries, a certain amount of ecclesiastical law had found its way into common law of Europe, and then into American law as well. As a result, not even the guarantees of the Constitution itself were enough to keep our religion and government apart.
19th Century Antisexualism
Puritan antisexualism increasingly infected both England and America and reached its climax in the 19th century. We are not suggesting that the period was noted for its purity or sexual abstinence—quite the contrary; as always occurs, the repression merely produced an uncommon amount of perversion and sexual aberration.
We have commented previously on the extent to which Victorian England was obsessed with sex, with an excessive modesty in speech, manners and dress that only accented matters sexual (The Playboy Philosophy—Part X, September 1963). The pre-Christian Celts and Saxons were a virile, vigorous, outgoing people; Britain had paid a heavy price for its religious heritage, for the traditional reserve and lack of spontaneity of the Englishman are as much a result of his Puritan past as is his taste for the sadomasochistic pleasures of the whip (flagellation is such a common accommodation of the English prostitute that revelations on the price paid for such services—one pound per stroke—during the Dr. Stephen Ward–Christine Keeler–Mandy Rice-Davies trial raised hardly an eyebrow among blasé Britishers).
In America the antisexual bent of the 1800s was mixed with excessive sentimentality and romanticism; women were placed upon pedestals, virginity and chastity were prized most highly, and the notion that a “nice girl” might experience anything akin to sexual yearning, or take pleasure in the sex act, was unthinkable. Morton M. Hunt, author of The Natural History of Love, comments in his chapter for Julian Huxley’s The Humanist Frame: “…The 19th century—that high-water mark of romantic and sentimental feeling—was a time when many men were made impotent or masochistic by the prevailing love mores and many women were warped by frigidity and frustration.”
It was also early in the last century that the censor first raised his ugly blue snout in America. Our founding fathers had spoken out most forcefully on the subject: In 1814 Thomas Jefferson stated that he was “mortified” to learn that the sale of a book should ever become a subject of inquiry in these United States. “Are we to have a censor whose imprimatur shall say what books may be sold and what we may buy?” Jefferson demanded. “Whose foot is to be the measure to which ours are all to be cut or stretched?”
“For the first hundred years,” reports Morris L. Ernst in The Best Is Yet, “the United States was unafraid of sex. It was free of literary taboos, except for a remnant of blasphemy…. These men who drafted our federal Constitution and signed our Declaration of Independence bulged their cheeks with naughty giggles when reading the works of Fielding and Smollet. The plays of Congreve were presented without expurgation. And there was no substantial demand in this land for the importation of a Master of Revels who, since the days of Fielding’s attack on Walpole, had been using his shears on the drama of Great Britain….”
But in the beginning of the 19th century we have what is generally accepted as the first recorded suppression of a literary work in the U.S. on the grounds of obscenity. The book was John Cleland’s Memoirs of a Woman of Pleasure, better known by the name of its heroine, Fanny Hill. Cleland’s delightful classic of ribaldry had been around for more than half a century and no one had thought to censor; Ben Franklin is reputed to have had a copy in his library. But the book was suppressed in the early 1800s, and it did not appear again in legal publication in this country for a century and a half until, in 1963, G.P. Putnam’s Sons—emboldened by the recent victories over censorship in the courts—brought forth a new addition. Fanny’s reappearance resulted in several obscenity suits which the publisher successfully defended; in the most significant, late in the year, a New York court first held the book to be obscene, then—in as refreshing a bit of jurisprudence as we have witnessed in the Empire State in a very long while—reversed itself, without the need for appeal to a higher court.
After the unhappy fate of Fanny at the start of the previous century, the censors went back—for a time—to whatever censors do when they’re not censoring; in a memorable debate in the U.S. Senate in 1835, Clay, Calhoun and Webster declared that the federal government should never have anything to do with censorship: and in that same year a visitor from France. Alexis de Tocqueville, reported: “Attempts have been made by some governments to protect the morality of nations by prohibiting licentious books. In the United States no one is punished for this sort of work.”
Yet in 1842 Congress passed a Tariff Act that forbade the importation of “obscene books or pictures into the United States”; and in 1865 another law passed prohibiting the transmission of objectionable materials through the mail. “But there was one saving grace in these laws,” wrote Ernest Sutherland Bates. “It never occurred to anyone apparently that they should be enforced.
"And then around 1870 the lid was clamped down. Censorship was spread over the land like a prairie fire.” It was imported, like the Puritans themselves, from England. As Andrew Lang expressed it; “English literature had been at least free-spoken as any other to the death of Smollett. Then in 20 years, at most, English literature became…the most respectful of the young person’s blush that the world had ever known.”
The growing sexual repression of a century erupted in an orgy of censorship—led by the infamous Anthony Comstock and others of his ilk—continuing to the end of the 1800s and into the beginning of a new century.
Comstock toiled for a number of years as an unpaid postal inspector, ferreting out the indecent, the lewd, the lascivious and the obscene in the U.S. mails in what was clearly a labor of love, before graduating to the post of secretary of, and primary spokesman for, the New York Society for the Suppression of Vice. He was responsible for the passage of the Comstock Act, upon which H.L. Mencken reported bitterly: “The story of the passage of the Act of Congress of March 3, 1873, is a classical tale of Puritan impudence and chicanery. Ostensibly…the new laws were designed to put down traffic [in obscenity] which, of course, found no defenders—but Comstock had so drawn them that their actual sweep was vastly wider, and once he was firmly in the saddle, his enterprises scarcely knew limits. Having disposed of The Confessions of Maria Monk and Night Life in Paris, he turned to Rabelais and the Decameron, and having driven these agents under the book counters, he pounced upon Zola, Balzac and Daudet, and having disposed of these, too, he began a pogrom which, in other hands, eventually brought down such astounding victims as Thomas Hardy’s Jude the Obscure.
"In carrying on this war of extermination upon all ideas that violated their private notions of virtue and decorum, Comstock and his followers were very greatly aided by the vagueness of the law. It prohibited the use of the mails for transporting all matter of ‘obscene, lewd, lascivious…or filthy’ character, but conveniently failed to define these adjectives. As a result…it was possible to bring an accusation against practically any publication that aroused the Comstockian blood-lust.”
Heywood Broun remarked, “Anthony Comstock may have been entirely correct in his assumption that the division of living creatures into male and female was a vulgar mistake, but a conspiracy of silence about the matter will hardly alter the facts.”
Not until the Twenties was there any noticeable tendency toward a thaw in this chilling climate of censorship, and it was not until the most recent years that American maturity and the U.S. courts reached the point where we can once again contemplate the possibility of the free press assured us by our founding fathers.
Our fear of sex has been sufficient, as we have illustrated in considerable detail in early installments of the Philosophy, to rationalize the abridgement of our Constitutionally guaranteed freedoms of both speech and press. Sex has also served as a justification for curtailing academic freedom—and the mere expression of an unpopular opinion on the subject can still cause the dismissal of a college professor (as it did at the University of Illinois in 1960); or a too realistic, though award-laden, drama by Eugene O'Neill may bring down the wrath of a university president and prompt the registration of the head and staff of an entire drama department (as occurred at Baylor in 1963).
Discussing, describing or graphically depicting sex too explicitly, or with an improper moral point of view, is still prohibited throughout much of these supposedly free United States. Why? Because it may lead to like behavior. And that it is the greatest fear of all: that sex may be indulged in freely, without the burden of guilt and shame placed upon it by our ignorant, superstitious, fear-ridden ancestors in the Middle Ages.
Never mind that the contemporary psychiatrist knows, and will gladly tell any who care to listen, that books, and pictures, and pamphlets and papers that deal openly and honestly with sex have little or no effect upon human behavior and whatever effect they do have is healthful, rather than injurious, to society; never mind that the science of psychiatry has revealed that it is the repression of the natural sex instinct, and the association of sex with guilt and shame, that cause the hurt to humankind—producing frigidity, impotence, masochism, sadism, homosexuality and all manner of sexual perversions, social and psychological ills, neuroses and psychoses; never mind that all of history documents the utter impossibility of curbing the normal sex drive, of keeping the male and female free from this sin on the flesh; never mind that modern research into sex behavior has revealed that America’s own Puritan attempts at sexual suppression have failed to halt or seriously hinder the “immoral” sex conduct on the majority of our adult population and resulted in nought but frustration, aberration, agony and heartache; never mind that any effort to regulate or control the private sexual morality of the adult citizens of the United States is contrary to the principle of individual freedom that is the very foundation of our democracy, and is in conflict with the most basic guarantees of our Constitution and Bill of Rights.
Never mind—for such arguments are based upon reason. And there is nothing reasoned or rational about our society’s attitude toward sex. It is based, instead, upon irrational conglomeration of prejudice, superstition, fear, faith, mysticism and marlarkey.
Sex, Religion and the State
The contemporary Judaeo-Christian concept of sexual morality stems—as we have indicated in some detail in the previous issues (The Playboy Philosophy, August and September, 1963)—less from original Judaic law or the teaching of Christ than from the extreme antisexualism of the medieval Church, which viewed all sex, both in and out of marriage, and even marriage itself, with extreme distaste; and Calvinist Puritanism, which extended the antagonism toward sexual pleasure to include all pleasure in general.
Both the medieval Church and Calvin’s Puritanism ruled their respective European societies with an iron hand, through the ecclesiastical courts and control over the secular governments as well; both demanded obedience of church law—both tortured, imprisoned and executed heretics.
The Church of the Middle Ages established penitential laws regulating every aspect of sexual life, including not only fornication and adultery, but masturbation and even involuntary nocturnal emissions; the Church also decreed the days of the week and the weeks of the year in which it was permissible for the market to indulge in coitus, as well as delineating the sexual techniques to be used between man and wife in order to remain free from sin; the sexual act was permissible within marriage only and for the single purpose of begetting children—the pleasures of sex were supposed to be kept to a minimum by the pious and it was the pleasure attendant with the act, even more than the act itself, that was thought to be sinful; women were held in extremely low esteem and a number of religious leaders of the period denounced them as the principle source of sin and the cause of mark fell from the grace of God (it was in this time that the Biblical story of Adam and Eve in the Garden of Eden was given its sexual interpretation, with Eve cast in the role of the temptress—although Christian authorities of every denomination agree that the “Original Sin” was pride, and there is no evidence in either the Bible or in any respected theological interpretation of the Scriptures to justify the idea, still held by many, that the sin was sexual).
John Calvin and his Puritan followers accepted sex within marriage as essentially good and opposed the celibacy of the priesthood, but Calvin warned against any “indelicacy” in sexual relations and exhorted the married to “restrain themselves from all immodest lasciviousness and impropriety.”
He considered it an “inexcusable effrontery” for a wife to touch that part of her husband’s body “from the sight and touch of which all chaste women naturally recoil.” Puritanism was an essentially joyless religion—in sex and in all other aspects of daily life. And sex outside the bonds of marriage was damned as the worst of all possible sins. William Graham Cole, Ph.D. and noted member of the ministry of the Presbyterian Church, previously assistant professor of religion of Smith College and presently President of Lake Forest (Illinois) College, states in his book, Sex in Christianity and Psychoanalysis, “Calvin…could not believe that God would under any circumstances fail to vent His anger against fornication, and he extended the sense of the Seventh Commandment to cover that as well as the other forms of sexual vice….
"Sodomy Calvin regarded as a particularly heinous crime, since not even the beasts, he said [quite incorrectly], are guilty of such a perversion of nature. Calvin had clearly no experience with the sexual behavior of animals. Bestiality, sexual relations with a member of another species, is another sin repugnant to the modesty of nature itself, and the law very properly [in Calvin’s view] prescribes the death penalty….” Dr. Cole states that Calvin also “spoke with approval of the severe punishment meted out by Hebrew Law [for] sexual intercourse during menstruation.
The person was punished by exile, and Calvin felt the punishment fit the crime, for he regarded any guilty of this as downright degenerate….” In Geneva, Calvin attempted, unsuccessfully, to impose the death penalty for adultery, but later, in England, under Puritan rule, adultery was made a capital offense punishable by hanging, and some citizens actually were hung for the crime.
It is not our intention to dwell upon the irrational aspects of such religious doctrine; in a free society, each religion should be free to teach whatever it pleases, rational or not, and each individual free to either accept or reject the belief. What concerns us here is the extent to which this antisexualism has been projected into secular society and has even found its way into the laws that govern our land.
In the last installment of this editorial series we examined the extent to which religious beliefs on sex are reflected in our laws governing marriage and divorce. Marriage, in our society, is a church-state license to engage in sex and almost all sexual activity outside of marriage is prohibited by statutes on fornication, adultery and cohabitation in most of the 50 states.
We oppose these laws—not as an endorsement of either premarital or extramarital sex—but in the firm belief that such personal conduct should be left to the private determination of the individual and is not rightly the business of government in our democracy. This belief is shared by a great many legal and religious leaders in America, who have been among the most outspoken in the current criticism of our archaic sex statutes.
The legal view was expressed by the American Law Institute, when it authorized a Model Penal Code for sex in 1955 recommending that all consensual relations between adults in private should be excluded from the criminal law, since “no harm to the secular interests of the community is involved in atypical sex practice in private between consenting adult partners and there is a fundamental question of the protection to which every individual is entitled against state interference in his personal affairs when he is not hurting others.”
The religious view is expressed by Father James Jones of the Episcopal Church, who has observed that when personal sexual behavior is governed by the state, it is less likely to effectively change the behavior than to make it hidden or secretive, thereby making more difficult the task of religion in dealing with the moral issues involved.
The religious view is confirmed by the facts: Although 37 of the 50 states have laws against fornication and 45 have statutes prohibiting adultery, Dr. Alfred Kinsey and associates, in their monumental study of U.S. sex behavior, published in Sexual Behavior in the Human Male and Sexual Behavior in the Human Female, found that the majority of adult men and women in America admitted to having sexual intercourse outside of marriage. Kinsey’s studies established that the sexual experience of adult Americans varies widely—depending upon social and educational background, with 67 percent of the males with some college education, 84 percent of those who attended high school but did not go on to college, and 98 percent of men with only a grade-school education, having engaged in premarital sexual intercourse; approximately 50 percent of all females have coitus prior to marriage and, unlike the statistics for males, this figure increases for women of higher education, with some 60 percent of the females with a college education having had intercourse before marriage.
Although both the social taboos and the statutes are far stricter regarding adultery. Kinsey estimates—taking into account the high degree of cover-up he found among men in this portion of his study—approximately 50 percent of all married males have sexual intercourse with women other than their wives at some time during their marriage. In Kinsey’s study of U.S. females, 26 percent of all married women admitted having engaged in extramarital intercourse; the females with a higher educational background showed a slightly higher incidence, with 29 percent of the wives with some college education admitting to extramarital sex. Here again, as with the married males, Kinsey found a considerable hesitancy on the part of the wives to divulge the facts related to marital infidelity—a problem not experienced by the researchers in those portions of the survey dealing with premarital sex, suggesting that the true percentages for extramarital sex among women are somewhat higher.
Using only the minimal estimates supplied by Kinsey and his staff, however, it is safe to say that one out of every two U.S. husbands, and something more than one out of every four wives, will engage in extramarital intercourse at some time during their marriages; in addition, nearly all of the males and one half of the females have premarital intercourse. Quite obviously the U.S. laws prohibiting fornication and adultery are having little effect upon the behavior of a sizable portion of our society.
Crimes Against Nature
It is in our laws against sodomy, or what some states refer to as “the abominable and detestable crime against nature,” that our religiously generated aversion to sex proves most pronounced. Sodomy historically and medically refers to anal intercourse, or buggery, but the statutes on sodomy include all manner of sexual activity conceived by someone, somewhere, at one time or another, to be “unnatural”; and this means, of course, in this sexually repressed society, almost every variety of sexual activity other than “natural” coitus. Sodomy laws thus cover, in one state or another, not only buggery, but fellatio (oral-genital contact with the male), cunnilingus (oral-genital contact with the female), homosexual behavior, bestiality (sex contact with animals), necrophilia (sexual contact with the dead), and in two states, even mutual masturbation. The very concept of “natural” and “unnatural” sex is, of course, a religious-moral one. Among all of these “crimes against nature”, only necrophilia is relatively rare and a certain symptom of a serious psychosexual disorder. We will offer no personal moral judgments on the rest of this behavior now—reserving the expression of our own concept of a rational sexual morality for a later installment of this editorial series—but the psychiatrist, without making any moral determination on the subject would consider almost all of this activity normal (and, therefore, “natural”); and Kinsey found a far greater frequency for most of it than was previously assumed.
Forty-nine of the fifty states and the District of Columbia have sodomy statutes and they include some of the most emotion-tinged language to be found anywhere in the law. The Michigan statute, which states, “Any person who shall commit the abominable and detestable crime against nature, either with mankind or with any animal, shall be guilty of a felony,” is typical; the phrase “abominable and detestable crime against nature” appears with such regularity in the sodomy statutes that it has the effect of being an alternate title for the offense, and Rhode Island actually lists the crime under that heading; in Utah, Arizona and Nevada, it is also referred to as the “infamous crime against nature.”
The “abominable and detestable” phrase also becomes, in some instances, the sole description of the offenses prohibited under the law. Some of the legislators responsible for initiating and passing the statutes were apparently so embarrassed by the whole business that they offered no further clue to the nature of the crime, except to state that it was illegal if perpetrated “with mankind or animal.”
The noted 18th century jurist Sir William Blackstone author of Commentaries, which are still fundamental in any study of English or U.S. law, reflects the irrational emotionalism associated with these statutes when he writes: “I will not act so disagreeable a part, to my readers as well as to myself, is to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law which treats it, in its very indictments, as a crime not fit to be named…. Which leads us to add a word concerning it punishment. This the voice of nature and of reason, and the express law of God determined to be capital, of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from Heaven; so that this is a universal, not merely a provincial precept; and our ancient law in some degree imitated this punishment, by commanding such miscreants to be burned to death; though Fleta says they should be buried alive; either of which punishments was indifferently used for this crime against the ancient Goths. But now the general punishment of all felonies is the same, namely, by hanging; and this offense (being in time of popery only subject to ecclesiastical censures) was made a felony without benefit of clergy….”
The U.S. courts have displayed a similar distaste in dealing with the subject. Thus the judge, in State vs. Whitmarsh, commented, “We regret that the importance of this question [whether or not oral-genital contact should be considered a crime against nature] renders it necessary to soil the pages of our reports with a discussion of a subject so loathsome and disgusting as the one confronting us.”
Former Judge Morris Ploscowe, of the New York Magistrate’s Court, now Adjunct Associate Professor of Law at New York University, states in Sex and the Law: “Ever since Lord Coke’s time, the attitude of judges has been that sodomy is ‘a detestable and abominable sin among Christians not to be named.’ The result of this attitude is a sharp departure from the usual rules of criminal pleading. It is one of the basic canons of criminal procedure that a defendant is entitled to know the particulars of a crime charged against him, so that he can adequately prepare his defense. If the indictment is not sufficiently specific, the defendant has a right to demand a bill of particulars. But when a man is charged with sodomy or a crime against nature, a indictment in the language of the statute is enough. It is enough that the indictment alleges that a particular time and place the defendant committed a ‘crime against nature’ with a specific person. The defendant need not be informed of the particular sexual perversion which is charged against him. As the Court put in the case of Honselman vs. People:
”‘It was never the practice to describe the particular manner of the details of the commission of the crime, but the offense was treated in the indictment as the abominable crime not fit to be named among Christians. The existence of such an offense is a disgrace to human nature. The legislature has not seen fit to define it further than by the general term, and the records of the courts need not to be defiled with the details of different acts which may go to constitute it. A statement of the offense in the language of the statute is all that is required.’“
Although English common law, from which our own statutes on the subject are derived, defined and prohibited only buggery with mankind or beast as "the crime against nature,” carrying the penalty of death, a majority of the present-day U.S. statutes include both oral and anal intercourse under sodomy.
Moreover, none of the statutes in any of the 49 states make any distinction between heterosexual and homosexual sodomy—both are prohibited under the law; and what is even less clearly recognized is that none of the U.S. statutes make any distinction between the married and the unmarried. Our government thus specifies, quite literally, where a husband and wife may, or may not, kiss one another; and the manner in which the sex act may be initiated and carried out in the marriage bed without becoming illegal.
Modern insights into human behavior have radically changed society’s views on the subject of perversion, of course, and what was considered “unnatural” in sex is now recognized as perfectly normal, and in many instances, desirable. A majority of our contemporary marriage manuals, courses in sex education, and counselors on the problems of sex and family, stress a natural freedom in the love play that accompanies marital coitus; both husband and wife are informed that the intimate preliminaries of sex can be important in achieving the full satisfaction of both partners; every part of the loved one should be dear, and free from shame, and the sexual foreplay may quite properly include kisses and caresses wherever desired; no act of intimacy that brings pleasure to members of the mating should be considered improper or taboo.
This quote from Sexual Harmony in Marriage by Oliver M. Butterfield, Ph.D., a book reportedly given by some members of the Presbyterian clergy to young couples about to be married, is typical: “Any position is proper which permits full satisfaction for both parties. All parts of the body are proper for use if they can be made to contribute to the general goal without giving offense to the taste or feelings of either partner, and if either partner is harmed thereby.”
Dr. Albert Ellis states, in an article published in Marriage and Family Living: “The only sexual ‘perversion’ is a fetish or rigidity which convinces an individual that he or she can only have satisfactory sex relations in one method or position. The great majority of sexual perverts in this country are not sadists, homosexuals, exhibitionists, or similar deviates, but ‘normal’ married individuals who only enjoy one method of coitus…because they are afraid or ashamed to try the dozens of other sexual variations that are easily available to them.”
In offering such psychologically sound advice, the marriage manuals, educators and counselors of America are actually inviting husbands and wives to commit criminal acts in their bedrooms—acts that are prohibited by law almost everywhere in the United States, with lengthy prison sentences prescribed to the guilty.
Since the relations between a man and his wife are most often kept private, relatively few instances of such behavior come to public attention. Kinsey reports, in Sexual Behavior in the Human Male, however, “While the laws are more commonly enforced in regard to such relations outside of marriage, there are instances of spouses whose oral activities became known to their children, and through them to the neighborhood, and ultimately led to prosecution and penal sentences for both husband and wife….”
More often this behavior comes to light as the result of a divorce action, although Ploscowe comments that it has been customary for the courts to view such charges with skepticism when they are a part of a suit for divorce, since they are inherently unprovable and rest solely upon the assertion of the party seeking to end the marriage. Sometimes the behavior comes to light through charges lodged by an unwilling partner in oral or anal sex, because the act was allegedly performed under duress.
Kinsey states in his second volume, Sexual Behavior in the Human Female, “We have cases of persons who were convicted because one of the spouses objected, or because some other person became aware that oral and anal play had been included in the marital activities.” Kinsey observes that there have been relatively few actual convictions of husbands or wives under U.S. sodomy laws, but adds, “As long as they remain on the books, they are subject to capricious enforcement and become tools for blackmailers. In those states where the definition of cruelty as one of the grounds for divorce includes ‘personal indignities’ or ‘mental cruelty,’ divorce cases involving either the husband’s or the wife’s desires or demands for the use of oral techniques are not infrequent.”
For the unmarried, the chances of discovery and possible prosecution are obviously greater. Completion of the act to orgasm, with either the male or female, is not required to be guilty of the offense—the act itself is sufficient; in some states, a conviction may be based upon circumstantial evidence, or simply upon an attempt to commit the act: Alabama’s statute on the “crime against nature” states, “An offense may be proven under this section…by circumstantial evidence, when positive proof is wanting…. A conviction may be had for an attempt to commit an offense denounced by this section.” In some states the mere suggestion of solicitation to engage in such behavior is a crime. Kinsey reports, “One case even goes so far as to uphold the conviction of a man for soliciting his wife to commit sodomy.”
Considering the obvious abhorrence with which both the legislative and the judicial branches of our government have dealt with the subject, and the prohibitive penalties prescribed for the assorted nonprocreative acts collected together under the sodomy and “crime-against-nature” statutes (the most severe of any of our laws dealing with sexual activity between consenting adults), it is especially interesting—and significant—to consider how prevalent at least some of this behavior is in our society.
Dr. Kinsey and his researchers found relatively little evidence of heterosexual anal intercourse, either within or outside of marriage, and neither of their first books include any statistics on this behavior. Kinsey did find marked differences in the anal eroticism reported by his subjects, however, and some of the females described sexual responses to anal intercourse that were closely akin to those achieved through vaginal coitus. More current research prompts the Sex Institute to estimate that approximately four percent of the adult male population has attempted, and three percent successfully accomplished, anal heterosexual intercourse; these statistics are a preliminary study, however, and no educational breakdown is presently available; consistent with Kinsey’s previous findings, it is to be assumed that the percentage among upper-level, college-educated males will be somewhat higher than this overall average. A number of experts in sexual behavior, including Dr. Lawrence Z. Freedman, of the Department of Psychiatry at the University of Chicago, consider these percentages to be low; Dr. Freedman states, “My impression is that both female homosexual experience and male anality are probably underestimated in these [Kinsey’s and his Sex Institute’s] figures.”
In contrast to anal intercourse, however, Kinsey found oral-genital sex—also a considered a “crime against nature” in most states—quite common among males and females, married and unmarried.
Kinsey reports, “Mouth-genital contacts of some sort, with the subject as either the active or the passive member in the relationship, occur at some time in the histories of nearly 60 percent of all males”; in an Accumulative Incidence table for Oral Contacts in Sexual Behavior in the Human Male, by which is meant the sexual experience of the subject up to the time of the interview, Kinsey found that 18.4 percent of the male had premarital heterosexual oral-genital relations of an “active” nature (cunnilingus, performed by the male on the female) and 38.6 percent had “passive” mouth-genital relations prior to marriage (fellatio, performed on the male by the female); however, the American husband apparently believes it is better to give than to receive, or is less sexually repressed than his spouse, as approximately 45.3 percent of the married males engage in cunnilingus with their wives, while 42.7 percent experience fellatio.
As with most sexual activity, educational background plays an important role in determining the extent of oral-genital activity that accompanies the sex act, with cunnilingus and fellatio far more common among upper-educated males than among their less-educated brothers. Among those males who have never gone beyond eighth grade in school, the accumulative incidence for mouth-genital contacts of any kind is 40 percent; for those males with an education limited to high school, the incidence is 65 percent; and for those with some college, the percentages rise to 72.
Fifteen percent of all U.S. females have some mouth-genital contact prior to marriage and, as might be expected, Kinsey found a high correlation between such activity prior to marriage and the extent of premarital intercourse engaged in by his female subjects: Among the younger women in the study who had not engaged in premarital coitus, “only three percent had allowed the male to touch their genitalia orally…. But among those females who had had some, even though not extensive coital experience, 46 percent had accepted such contacts….”
Oral stimulation of the male by the female follows the same general pattern, though the incidence is slightly lower. On this Kinsey comments, “Often the female makes such contacts only because she is urged to do so by the male, but there are a few females who initiate such activity and some who may be much aroused by it. A few may even reach orgasm as they stimulate the male orally. This greater inclination of the human male toward oral activity is duplicated among other species of mammals. Contrary to our earlier thinking, we now understand that there are basic psychologic differences between the sexes; and although cultural traditions may also be involved, the differences in oral behavior may depend primarily on the greater capacity of the male to be stimulated psychologically.”
Among married women, approximately 50 percent have some mouth-genital contact, either active or passive, with their husbands; Kinsey’s report on the Female does not include any classification by educational background, but it is to be assumed that the pattern already established would hold true and that females with a higher education would also display a markedly higher incidence of both premarital and marital activity of an oral-genital nature.
One of Kinsey’s most interesting findings related to oral eroticism has to do with the date of birth of his subjects—a comparison of the incidence of this activity among both the males and females of the present and previous generations. Quite clearly the public attitude toward such behavior has changed radically during the past 50 years and what was once considered “perversion” is now recognized and accepted throughout much of our society as both natural and good; such a lessening of the taboos connected with this sexual activity might be expected to produce a noticeable increase in the activity itself.
In addition, the antisexual might argue that the prevalence of such “sophisticated” nonreproductive variations on the sexual theme offers evidence of a sexually jaded society that requires such “abnormal” psychosexual stimulation, because the unnatural contemporary obsession with the subject has dulled our capacity to appreciate sex and be aroused by it in its simpler forms.
It is significant to note, therefore, that in the accumulative-incidence tables in both the Male and Female studies, the oral-genital activity is relatively the same for the past and present generations. Society’s publicly proclaimed attitude on the subject has undergone a dramatic change, but the actual private behavior of the individual has remained almost constant. There were, as we have pointed out, significant variations based upon educational background, but for both male and females of similar education in this and the previous generations, born in each decade back to 1900, Kinsey comments, “There were surprisingly few differences….”
This fact is important, we feel, both in establishing the essential naturalness of the behavior itself and in pointing out how relatively ineffective social and legal taboos are in suppressing natural sexuality.
The same oral and anal techniques may be used to introduce variety and additional pleasure into a heterosexual relationship are the primary means of sexual gratification in homosexual associations.
As we have already stated, none of the U.S. statutes dealing with sodomy and/or “the abominable and detestable crime against nature” make any distinction between the heterosexual or homosexual practice of such activities. In the enforcement of laws, however, a disproportionately high percent of sodomy arrests and convictions involve homosexual contacts—presumably because a heterosexual cop and a heterosexual judge find a homosexual crime against nature a good deal more “abominable and detestable” than a heterosexual one.
We confess to a strong personal prejudice in favor of the boy-girl variety of sex, but our belief in a free, rational and humane society demands a tolerance of those whose sexual inclinations are different from our own—so long as their activity is limited to consenting adults in private and does not involve either minors or the use of any kind of coercion. Lenny Bruce expressed our viewpoint with typical satiric bite and insight when he said: “I’m not prejudiced against homosexuals, but I wouldn’t want my brother to marry one.”
Actually, we Americans are—as a nation—more intolerant of homosexuality than almost any other country in the world; Dr. Alfred Kinsey states, in Sexual Behavior in the Human Female: “There appears to be no other major culture in the world in which public opinion and the statute law so severely penalize homosexual relationships as they do in the United States today.” You can call an American male a scoundrel and a thief with less chance of eliciting an emotional response than if you simply question his manhood.
The American male’s concern over his masculinity amounts to an obsession. And as we have observed on our consideration of the history of antisex in our culture, such an obsession usually represents a repressed fear. We will explore a bit later, in some detail, the degree to which this fear for our manhood is justified in contemporary U.S. society: We will attempt to trace the trends in our society that are responsible for this drift toward the asexual; and we will point out the extent to which the censor and the prude concentrate their most vigorous attacks on the heterosexual aspects of our culture, leaving the asexual, homosexual, sadomasochistic and fetishtic to flourish.
Quite obviously, however, any attempts society may make to legislate homosexuality out of existence are doomed to certain failure and are actually more inclined to perpetuate and encourage sexual deviation than diminish it.
To whatever extent homosexuality—an erotic attraction to members of the same sex rather than the opposite sex—represents an emotional disorder, it must be dealt with psychiatrically; you do not successfully treat a neurosis by passing a law against its symptoms. In addition, homosexual behavior is not necessarily symptomatic of any emotional aberration; far too great a percentage of our adult population have engaged in some form of homosexual activity at some time in their lives to permit it to be scientifically defined as abnormal.
Kinsey points out that homosexual contacts occur frequently in all other species of animal life and except for the strong cultural taboos affixed to such behavior, the incidence would presumably be equally high among human beings. Kinsey states that a perfectly normal man or woman may be erotically attracted to, or aroused by, a member of the same sex; and prolonged separation from the opposite sex (as in prison or some assignments in the armed services) may significantly increase these homosexual responses. Judge Morris Ploscowe states, in Sex and the Law: “Whenever men are isolated from women, or women from men, from any length of time, homosexual relationships and activity inevitably develop.”
The individual whose homosexual activity becomes known is apt to find himself an outcast in much of our heterosexual society and he is forced into a nether world inhabited almost exclusively by homosexuals; it thus becomes increasingly unlikely that he will find his way back to a predominantly heterosexual life. In this way, we unwittingly support a system calculated to maximize the spread of homosexuality rather than reduce its incidence, at the same time linking the behavior with feelings of guilt and shame conducive to emotional conflict, anxiety and perhaps serious psychological disorientation.
Kinsey makes this further appeal to reason regarding our attitude on the subject: “Condemnations of homosexual as well as some other types of sexual activity are based on the argument that they do not serve the prime function of sex, which is interpreted to be procreation, and in that sense represent a perversion of what is taken to be ‘normal’ sexual behavior. It is contended that the general spread of homosexuality would threaten the existence of the human species, and that the integrity of the home and of the social organization could not be maintained if homosexual activity were not condemned by moral codes and public opinion and made punishable under the statute law. The argument ignores the fact that the existent mammalian species have managed to survive in spite of their widespread homosexual activity, and that sexual relations between males seem to be widespread in certain cultures (for instance, Moslem and Buddhist cultures) which are more seriously concerned with problems of overpopulation than they are with any threat of underpopulation. Interestingly enough, these are also cultures in which the institution of the family is very strong.”
The general condemnation of homosexual relationships originated in Jewish history in about the Seventh century B.C., as a part of the extensive antisexualism that permeated Judaism after the Babylonian exile. Kinsey comments, “Both mouth-genital contacts and homosexual activities had previously been associated with the Jewish religious service, as they had been with the religious services of most of the other peoples of that part of Asia, and just as they have been in other cultures elsewhere in the world. In the wave of nationalism which was then developing among the Jewish people, there was an attempt to disidentify themselves with their neighbors by breaking with many of the customs which they had previously shared with them. Many of the Talmudic condemnations were based on the fact that such activities represented the way of the Canaanite, the way of Chaldean, the way of the pagan, and they were originally condemned as a form of idolatry rather than a sexual crime. Throughout the Middle Ages homosexuality was associated with heresy. The reform in the custom (the mores) soon, however, became a matter of morals, and finally a question for action under criminal law.
"Jewish sex codes were brought over into Christian codes by the early adherents of the Church, including St. Paul, who had been raised in the Jewish tradition on matters of sex. The Catholic sex code is an almost precise continuation of the more ancient Jewish code. For centuries in medieval Europe, the ecclesiastical law dominated on all questions of morals and subsequently became the basis for the English common law, the statute laws of England, and the laws of the various states of the United States. This accounts for the considerable conformity between the Talmudic and Catholic codes and the present-day statute law on sex, including the laws on homosexual activity.”
We share a common Judaeo-Christian heritage with Europe, but American Puritanism has carried this country well beyond the antisexualism still to be found in the Old World. In much of the U.S., the legal penalties for sodomy are surpassed only by those for kidnapping, murder, and rape.
And yet, despite the severest sort of social and statutory prohibitions, Dr. Kinsey and his research associates of Indiana University found a remarkably high percentage of both American men and women who admitted to have had some homosexual contacts. On the opening page of the chapter titled “Homosexual Outlet,” in Sexual Behavior in the Human Male, Kinsey states: “A considerable portion of the population, perhaps the major portion of the male population, has at least some homosexual experience between adolescence and old age. In addition, about 60 percent of the preadolescent boys engage in homosexual activities, and there is an additional group of adult males who avoid overt contacts but who are quite aware of their potentialities for reacting to other males.”
The data in this study indicate that a minimum of 37 percent of the total male population have had overt homosexual experience to the point of orgasm after puberty and prior to the age of 45. Among the males, approximately 30 percent have been brought to climax at least once through mouth-genital con