Volume 1, Number 3 (1977)
What this essay will attempt to show is that while, during the 19th century, the prohibition of sexual immorality played a comparatively unimportant role in American criminal law, the medical profession arrogated to itself the task of dealing with moral questions. Psychological medicine particularly, by substituting “treatment” of disease for legal punishment of moral transgression, placed itself in the position of enforcer of virtuous conduct. Medicine was so successful in assuming this function that, by the end of the century, it had enlisted the great mass of the literate public in support of its findings respecting the connection between sexual behavior and mental disease. At that point it became possible to alter the direction of American law to encompass the conclusions reached by the psychiatric and medical professions and to criminalize sexual immorality under the guise of legislating in the area of preventive medicine.
The expansion of the medical discipline into the area of private moral conduct is as old as the history of psychiatry — the branch of clinical medicine purporting to deal with the arcana of psychic life. In the United States, however, it was only in the last third of the 19th century that its influence reached significant proportions. By that time the profession was successful not only in maintaining social sanctions against immoral behavior with which the criminal law was not concerned, but of enlarging, without theoretical limit, the area of private behavior within its purview.
The thesis of this paper assumes that legal rules are distinct from moral rules and holds that while the American legal system found it inconvenient to enforce the latter the task was taken on by medicine, and particularly by psychiatry. It is, therefore, essential to fix the area in which law, in the sense in which I mean it, can be differentiated from morality.”1 A contemporary legal theorist writing on the subject points to three cardinal features which permit the one to be distinguished from the other.’’2 Firstly, the concern of law, at least in the Western tradition, is far narrower in scope than is that of morality. Law ideally attends only to those aspects of conduct indispensable to the maintenance of the basic fabric of society. Morality has no such limitation; rather, it calls for conformity with an ideal in both thought and behavior. Secondly, the law is primarily concerned not with interior attitudes but with external conduct. Responsibility in the law is assumed solely on the basis of criminal intention established by external evidence. Morality’s concern rests primarily with the nature of the motive of the actor, with his interior attitudes, states of mind, and the longrun condition of his soul. Finally, the most salient difference between law and morality revolves around the nature of sanctions imposed and who imposes them. With respect to legal rules, sanctions take the form of deprivation of property or liberty — possibly even of life — and are imposed by some formalized governmental apparatus; moral sanctions, on the other hand, when not selfimposed by conscience, are generally nonviolent, such as social ostracism, and are imposed by individuals acting on their own behalf or voluntarily with others.
The Protestant Reformation and a capitalist economic system which culminated in 19th-century liberal doctrine both worked towards a more pronounced distinction between legal rules and moral rules. The earlier ideal based on the Platonic tradition of a system where the law was as comprehensive as the moral code and where its primary function was to promote virtue gave way to emphasizing individual activity wherein one’s behavior, freely choosen, privately determined one’s salvation or damnation, either in this world or the next.”3
The growing distinction between law and morality is intimately connected with the history of freedom and the theory of inalienable private rights,4 enshrined in the American legal framework, in the Declaration of Independence, and the first ten amendments to the Constitution. The movement to secure individual rights in the United States, making all government intrusion into the peaceful daily lives of citizens suspect, undermined the rationale by which the State could be regarded as having authority over private moral decisions. That the government should take onto itself the task of offering a positive function in moral affairs contravened the political philosophy inherent in a structure of law consistent with limited government.5
It is true that the criminal law in colonial America was active in the enforcement of public morality. In 17th-century New England especially, the penal codes of the colonies were heavily oriented towards the punishment of sin.6 However, after the Revolution, American law significantly altered its direction. The law then, and throughout most of the 19th century, was strongly biased towards individual autonomy and the free market as against public power. This was true not only of the law of contract, as would be expected in a system based on economic individualism, but of tort and criminal law as well.7 The singular importance of placing strict limits on governmental power led to a reduction in the importance of criminal law generally and, with it, crimes which were regarded as transgressing sexual morality.8 With respect to sexual behavior, the common law heritage was almost invariably the guide in determining which acts were indictable. The canon of criminal law that developed throughout most of the 19th century was an amalgam of judicial extensions based on common-law analogies and statutory enactments which themselves codified pre-existing common law.9
In the area of sexuality, indictable offenses were — in the main — limited to the commonlaw felonies of rape and sodomy and to lesser wrongs such as adultery, notorious lewdness, and frequenting or keeping a bawdy house.10 Because of the common-law bias in the interpretation of criminal law, the determination of criminal liability in the area of sexual conduct — in the absence of an explicit statutory provision to the contrary — was customarily interpreted to rest on proof of the “open”, “notorious”, “public”, and “scandalous” nature of the act. For example, at common law an indictment on a charge of haunting a house of ill fame had expressely to charge the open and notorious nature in which the bawdy house were frequented by the defendant.11 Lewd and indecent conduct was indictable only when “habitual, open, and notorious”.12 “Mere private lewdness or indecency”, in itself, was not an offense.13 With respect to this requirement, a recent commentator writing on indecent exposure notes:
To be indictable at early common law this act not only had to be public, but had to actually be seen by more than one nonconsenting person. The “more than one person” rule was soon relaxed to the extent that acts were held indictable if they were committed in a place “so situated that what passes there can be seen by a considerable number of people if they happen to look”. [Van Houten v. State, 5 N.J.L. 311 (Essex Quarter Sess., 1882), aff’d, 46 N.J.L. 16 (Sup. Ct., 1884)1. However, courts retaining this modified requirement have still refused to indict the act when committed in private before a single nonconsenting person. (E.g., Lockhart v. State, 116 Ga. 557, 42 S.E. 787 (1902); State v. Wolf, 211 Mo. App. 429,244 S.W. %2 (1922)].14
The provision that a sexual act, to be reg!)Ided as criminal, required an open and public flaunting of social norms found its way into a number of statutes prohibiting adultery and fornication. Of the states that evenutally enacted statutes prohibiting adultery,15 fifteen16 required that proof of a single act was not in itself sufficient to substantiate a charge of adultery. To be criminal the adulterous relationship had to be “open and habitual”. The same was true of the fornication statutes. By 1920, thirty-two states had prohibited fornication; of these only fifteen17 made a single act a crime. In the other seventeen states the offense was not, properly speaking, fornication but “lewd and vicious cohabitation”.18
With respect to rape, “carnal knowledge of a woman without her consent”, it is notable that, during the 19th century, the age below which a female was presumed by law to be unable to consent was, in most jurisdictions, 10 years.19 Thus, the current crime of statutory rape — which is not really rape at all — effectively did not exist throughout most of the century since the penal codes defining rape either stipulated 10 or 12 years as the age of consent or were silent on an age of consent, in which case the common-law age of 10 years would apply.
Sodomy, at common law, consisted solely in ‘’sexual connection, per anum, by a man, with a man or woman”.20 Although almost every state prohibited the act by statute, prosecutions throughout the 19th century were exceedingly rare inasmuch as both parties to the act were regarded as accomplices, equally guilty of the crime.21 As a result, the courts held that a conviction could not be sustained on the basis of the unsupported testimony of a party to the commission of the offense. Vern Bullough, in his history of sexuality, points out that the effect of this provision “was to exclude sexual activities between consenting adults in private from prosecution, whether homosexual or heterosexual”, especially “since solicitation to commit a sex act was not an offense”.22
The intrusion of the law into sexual behavior throughout most of the 19th century was far less extensive than the comprehensive system of legal restrictions which obtains today. Indeed, other than a few offenses such as adultery and sodomy, the criminal law was concerned more with proscribing the public flaunting of sexual activities than with prohibiting the sexual acts themselves. Morris Ploscowe has pointed out that since the ecclesiastical courts of the Church of England, traditionally responsible for a large area of sexual behavior, were not received in the United States, American law initially provided no institutionalized means for dealing with sexual conduct that had been ignored by the common law. Lacunae, therefore, had to be filled by statute.23 Although the statutory law underwent a general inflation over the course of the 19th century, laws relating primarily to sexual conduct began to be enacted in great numbers only in the last two decades of the century. Even as late as 1916, in the midst of a period which saw a great many statutes respecting sexual morality enacted by the various state legislatures, one prominent member of the New York Bar could still complain that
All communities and people find themselves quite in accord as to the seriousness of the crimes of murder and theft, but until recently, there was no law in the United States that made pandering a more serious crime than disorderly conduct, and in a few States pandering is still so little defined as to make the crime “merely a breach of manners and to put it in the same class of offenses as selling a street-car transfer’’. The treatment of commercialized prostitution not only differs in each city. but changes in the same city under each different administration. The prohibition in the Decalogue against adultery is no less definite than that against murder, and yet, while the law against murder is uniform and constant, that against adultery has been diverse and unstable. In some States adultery is a felony, in others a misdemeanor; ... In New York, adultery did not become a criminal offense until 1907, and since then it has been practically impassible to obtain a conviction in the absence of unusually aggravating circumstances. Illicit sexual intercourse is a crime in only a very few States, and in other States only becomes such when it is attended by notorious lewdness and indecency, resulting in public scandal and nuisance. In rape, the age of consent ranges throughout the United States from the common-law age of ten years to that fixed in New York at eighteen years.24
With 19th-century America governed by criminal laws incorporating comparatively few restrictions on private sexual conduct and with a general laxity in enforcement of those laws which did exist, the medical profession found circumstances particularly favorable for assuming the role of arbiter of the moral behavior of the nation left vacant by the law. The rise of the science of psychiatry as a specialized branch of medicine, armed with the prestige accorded to all scientific disciplines together with the power to compel treatment, provided physicians the opportunity to employ legal sanctions to enforce moral rules. Asserting that they had uncovered the fundamental laws governing mental health and disease, physicians and psychiatrists were able to offer their moral pronouncements as objective truths and, ultimately, to force compliance with their conconclusions through liberal commitment law.25
Psychiatry from its inception as a distinct area of medicine at the end of the 18th century had underscored the singular importance of sexual life in the etiology of psychic disease. Although the psychiatric and medical professions — up until the last decades of the 19th century — suffered from some of the same reticence regarding uninhibited discussion of sexual matters as did the general public, doctors felt comparatively free to speak of sexual issues which they considered of immediate and common concern. This was especially true of masturbation, to which they devoted particular attention. There are several reasons for this: first, although viewed as having serious consequences, it was a common practice among the young and the mentally disturbed, groups less able to hide their activity than were prudent adults; second, if it could be shown that masturbation were harmful and linked to psychic disorders, so would it be true of excessive fornication. Thus, masturbation and ‘’excessive venery’’ were commonly linked in medical discussions of sexuality. Finally, if it were scientifically demonstrated that masturbation and incontinence led to neuropathic conditions, a fortiori would this be true of the more recherché forms of sexual expression, such as homosexuality. Indeed, it has been argued by Vern Bullough and Martha Voght that many physicians, fearful of offending the sensibilities of the more squeamish, employed words such as “masturbation” and “onanism” as generic terms under which they meant to include all sexual aberrations, including homosexuality.26 Although the Bullough-Voght thesis is somewhat problematic, it is certainly true that it was within the context of their disquisitions on masturbation that physicians and psychiatrists developed a general theory of sexuality covering all sexual conduct.
By the end of the 19th century medical science had elaborated a comprehensive doctrine relating sexual indulgence and mental disease. As a result when, largely at the urging of physicians and moral reformers, a flood of legislation restricting sexual conduct was introduced in the period from 1880 to 1920, the theoretical foundation, scope, and direction of these new laws were provided primarily l;ly the scientific conclusions earlier reached by physicians and psychiatrists. This paper proceeds to discuss both these movements. The next section of this essay traces the development of the theory of sexuality which emerged in 19th century medical discussions of the interrelationship between masturbation, incontinence, and mental disease. It is followed by a discussion of the efforts made by physicians to translate these findings into law through an intensive lobbying campaign aimed at the passage of legislation prohibiting a wide range of sexual behavior.
