Sex, Law, and the State
SEX, LAW, AND THE STATE
Roderick G. Phillips
Sexual attitudes, behavior, and relationships have historically been among the most regulated areas of human activity in Europe. Some sexual relationships, such as those between persons of the same sex (homosexual) or between persons within specified close relationships (incest), have been deemed "unnatural" and socially disruptive insofar as they represented deviations from what is defined as the "natural" order of things. Other sexual relationships, such as those involving unmarried individuals or couples (often called fornication) and sex outside marriage (adultery) have been defined as illicit because they represented deviations from the principle that sex was permitted only between husband and wife. Historically they have been the object of legislation when they were considered threats to the stability of marriage, which was seen as a guarantor of social stability.
Beyond specific kinds of sexual activity and the reasons they have been ruled illicit or illegal by the state and religious authorities, sexual behavior has historically been difficult to regulate. Human sexuality has borne an immense burden of political and cultural significance. Sexual behavior and reputation have defined honor in a way that other human activities have not. More shame has been attached to transgressions of sexual mores than to almost any other social or legal rule of behavior. One result is that sexual slander has been the most effective means of undermining the reputation of a group or individual. Thus many of the marginal religious sects that sprang up during the English Revolution of the mid-seventeenth century were alleged to practice free love.
Certain representations of sexuality also have been subject to regulation in various ways. The explicit depiction of sexual acts in literature, the visual arts, or music may be variously defined as erotic or pornographic. The historical record shows that much of what might be considered pornography in modern society was in earlier centuries intended less to arouse a reader or viewer sexually than to be a means of social comment or political criticism.
REGULATION BY THE CHURCH
Before the rise of the nation-state in the early modern period and the extension of state regulation, most of the oversight of sexual behavior fell within the jurisdiction of the church. While the state progressively extended its secular jurisdiction over a wide range of social behavior and over key institutions such as the family, it was relatively slow and hesitant to legislate on sexuality. Certain forms of behavior that were offenses in church law, such as fornication and adultery, have only rarely been the subject of state legislation. In general the state has preferred to use civil remedies rather than criminal law against sexual activities that legislators considered improper. For example, where church courts often fined, excommunicated, or sometimes imprisoned adulterers, adultery has rarely been punishable under secular law. Instead the aggrieved spouse sought other remedies, such as separation or divorce, and sometimes obtained financial compensation from the adulterous spouse's accomplice in the adultery.
Because church law was the background to state laws and policies regarding sexuality, it is useful to sketch the outlines of sexual attitudes and behavior in ecclesiastical law. The broad rules for sexual behavior embodied in church law were drawn from the Bible, which deals, in several instances ambiguously, with many aspects of human sexuality. Church doctrines were debated and refined by theologians, councils, and popes for centuries, and by the late Middle Ages they reached a broad consensus. Even so various church councils and papal decrees and the many theologians who wrote on sexual issues adopted variations, some minor but some significant, among the policies. One of the challenges facing historians is to define the broadly accepted doctrine on human sexuality without losing sight of the variations. This doctrine was the basis of the secular policies later adopted and adapted by secular legislators who framed state law.
The doctrines of the medieval church on sexuality have been described broadly as negative. Sexuality was considered a gift bestowed by God, but the church preferred the faithful to suppress it if they could. The church valued a life of chastity more highly than one of sexual activity and, following St. Paul, held that Christians ought to remain virgins if they could but that they should marry if they could not. Marriage was deemed an institution ordained by God so men and women could be sexually active in a way that was not sinful. One of the explicit purposes of marriage in church doctrine was to "prevent fornication." In this sense marriage was tainted by its sexual purpose.
On the more positive side church doctrine endowed marriage with the role of procreation because the church insisted on the necessary link between sex and conception. This meant that only procreative sexual activity was permitted in church law, a doctrine that ruled out same-sex sexual relationships and any heterosexual sexual activities, such as oral or anal sex, that could not lead to conception. For the same reason it also excluded techniques such as coitus interruptus (withdrawal by the male before ejaculation), the use of contraceptives in the form of suppositories and condoms, and abortion.
The church placed extensive limitations on procreative sexual activity by a married couple. The church forbade sexual activity at times of penance, such as Advent and Lent, and on certain days that had particular religious significance. Certain coital positions were forbidden. Intercourse with the woman on top was not permitted because it reversed the proper order of society in which men were dominant, and the retro position was condemned because it was too reminiscent of the way animals have intercourse. Sex while standing was discouraged as less likely to result in conception because the semen would flow out of the vagina. What is commonly known as the missionary position was the sole favored position for intercourse.
Although many church writers agreed that sexual relationships might give pleasure, they were generally opposed to having intercourse solely for recreational reasons. The possibility of conception should always be present, which raised the question whether intercourse with a pregnant woman or a woman past the age of conception was permitted. This reinforced the opposition to the use of any contraceptive technique or device, which made intercourse solely recreational by depriving it of any procreative potential. While too-frequent sex was deplored, intercourse was nonetheless considered an obligation within marriage if only to deter either partner from looking for sexual gratification outside marriage. Sex was widely referred to in church literature as "the conjugal [or marital] debt."
The enforcement of these laws by the church courts in the medieval period and beyond varied widely, a pattern that continued when state legislation came into play. In addition to the expected variations according to time and place, the courts tended to treat offenders of various social classes differently and men differently from women. In some instances laws explicitly specified distinctions in penalty between women and men. For example, it was common for laws of adultery to provide more severe penalties for adultery by women, arguing that an adulterous woman risked becoming pregnant and creating the possibility that another man's child would inherit her husband's property. A double standard of sexual morality, which held women to higher standards of sexual behavior, is a persistent theme in the history of sexuality and sexual attitudes, and it was often expressed in laws and their enforcement.
Throughout the Middle Ages the church was the dominant force in the regulation of morality, including sexual morality. It claimed a special role in the surveillance of behavior that threatened the salvation of individuals, and it argued that general disobedience of God's laws as understood by the church would bring God's wrath upon society more generally. In addition sexual offenses were intimately linked to doctrinal nonconformity, and heretics often were alleged to be sexual deviants.
LEGISLATION AGAINST ADULTERY
The Protestant Reformation of the sixteenth century broke the unity of the medieval church and led to the creation of a number of discrete confessions under the protection of secular political authorities. It was accompanied by a shift in attitudes toward sexuality as Martin Luther, John Calvin, and other leading Reformers decried the church's preference for chastity and argued for recognition of sexuality as one of God's gifts to humans. Although Luther's writings at least contained some residual admiration for those who could remain virgins throughout their lives, the Protestants generally argued for the holiness of marriage and for husband and wife to enjoy their sexual activity without sinning as long as they behaved with modesty and the propriety appropriate for using a God-given gift. Protestant theologians were somewhat uneasy about the pleasure that could be derived from sex, but they generally decided that a moderate degree of pleasure was not sinful as long as it accompanied an activity that could lead to procreation and the building of a Christian society.
At the same time that they raised the value of sexuality and marriage, which were intimately linked, the Protestants were trenchant critics of the laxity with which the church, which became known as the Catholic Church to distinguish it from the Protestant confessions, had enforced sexual morality. Reformers such as Luther and Calvin declared that first the church had set impossibly high standards by insisting on the primacy of chastity and celibacy and by making marriage difficult through a range of impediments, and second it had failed to enforce them. The result, they argued, was that sexual immorality was widespread throughout Christian Europe, especially among the clergy, whether they were priests, monks, or nuns. In contrast to the celibate clergy of the Catholic Church, Protestant clergy were permitted to marry.
At the time that state authorities were sponsoring the founding of Protestant churches, this criticism provided an opportunity for the state to begin legislating in matters of sexual morality. But secular legislators, whether monarchs or parliaments, were reluctant to regulate sexuality with the same rigor and enthusiasm that the churches showed. Although a great deal of state legislation on sexuality was enacted between the sixteenth and the twentieth centuries, it was rarely as comprehensive as the purview of the churches. For example, few secular laws paralleled the medieval church's interest in attempting to restrict coital positions.
Because of the relatively restricted scope of state regulation of sexual behavior, churches continued to play an important role through the nineteenth century, just as they did in many aspects of the family. In part this was because the churches could stake a claim to a particular authority over morals, a claim that was not generally challenged by the state because it did not interfere with state policies and even tended to reinforce a particular vision of social relationships and order. Exceptions existed, notably secular laws that aimed to repress homosexuality, but on the whole behaviors such as fornication and adultery have rarely been criminalized. When they have been included in civil law, as grounds for divorce, for example, their application has depended not on state initiative but on the initiative of an injured party.
The history of adultery in England provides an example of the range of legislative options applied to sexual issues over several centuries. Jurisdiction over adultery fell to the courts of the Church of England following the Reformation in the 1530s. It was generally punished by fines, penances, and excommunication in varying combinations and often involved public shame. The guilty parties were compelled to stand in white sheets in the marketplace or in church for two or three consecutive Sundays. Penalties were more severe if adultery resulted in pregnancy. The woman involved was often whipped, half-naked, through the streets of the community and could be imprisoned for up to a year.
On the whole, however, the attitudes of the English church toward common adultery were relatively lenient compared with Calvinist areas like Geneva and Scotland, where in the sixteenth century adultery was made a capital offense. During the English Revolution, when state policy was influenced by Calvinist principles, a more rigorous policy was introduced on the grounds that adultery, incest, and fornication had become widespread and that it was necessary to enforce the biblical rule of death for an adulterous woman. A 1650 law provided the death penalty for a married woman who committed adultery and for her accomplice. On the other hand, a married man who committed adultery would be executed only if he had intercourse with a married woman. If he committed adultery with an unmarried woman or a woman he believed was unmarried, he was liable to a comparatively lenient punishment of three months in jail and a bond of good behavior for the following year. Notably this rigorous law found little support among the men who sat on juries during the 1650s, and not many were willing to convict a woman and send her to her death for committing adultery. Records indicate only a few executions, all of women, under the adultery legislation between 1650 and 1660, when it lapsed. This pattern of convictions reinforces the findings of several historians that adultery generally was not considered a serious offense until it became scandalous or resulted in pregnancy.
When the 1650 Adultery Act lapsed, adultery again fell to the jurisdiction of the church courts, and attempts to recriminalize adultery or to provide other penalties against adulterous couples failed in England. From the 1770s to the early 1800s several "adultery prevention bills" were passed by the House of Lords but were defeated in the House of Commons. Some tried to prevent the marriage of an adulterous couple on the grounds that such marriages effectively rewarded the immoral behavior of the parties concerned. But at least one bill, introduced in 1800, aimed to make adultery a crime punishable by a fine and imprisonment.
Never criminalized in England after 1660, adultery remained a justification for separation in the ecclesiastical courts, and it became grounds for a divorce when Parliament began to grant individual divorces by private acts of Parliament in 1670. Even then the church had a role to play in that a man seeking a parliamentary divorce had first to obtain a separation from an ecclesiastical court. Following that, he was required to sue his wife's accomplice in civil court for damages, a suit known as "criminal conversation," meaning "illegal intercourse." The judges awarded damages that were sometimes considerable, in the thousands of pounds, and sometimes a symbolic few pennies. Suits for damages for criminal conversation treated sexual access to his wife as a husband's property and her lover as a trespasser whose action had to be compensated in monetary terms. Often the amount was fixed according to the amount of honor at stake. The higher the social rank of the husband, the greater his loss and the more compensation was appropriate.
Some 325 parliamentary divorces based on adultery were granted from 1670 to 1857. Almost all were obtained by men, but in the nineteenth century three women successfully divorced their husbands. They, however, had to prove not simply adultery but aggravated adultery, that is adultery compounded by another offense such as incest, bigamy, or desertion. This is a clear example of the double standard that held women accountable to higher measures of behavior than men.
This double standard was embodied in the first English divorce law (1857), which allowed men to divorce their wives for simple adultery but required a woman wanting a divorce to prove aggravated adultery. Men and women in England were not put on the same legal footing with respect to adultery until a new divorce law was passed in 1923.
Other states had different legal trajectories with respect to adultery. In France various secular codes dealt with the issue before the French Revolution. The Catholic Church retained some jurisdiction, and under its law an adulterous woman could be confined to a convent for two years. But secular legal codes also dealt with adultery. Among others, the customary law of Normandy allowed a man to separate from his wife for reason of adultery but provided a woman with the same remedy only when she could prove that her husband had committed adultery in their dwelling. If he was unfaithful elsewhere, she had no legal recourse. During the French Revolution men and women had equal access to divorce when it was legalized in 1792, but the double standard did not disappear entirely. A woman divorced for adultery was penalized in the division of property following divorce, but this was not so for an adulterous man who was divorced by his wife.
In general the legislators of the French Revolution, who paid a great deal of attention to the family and social relationships, passed few laws dealing with sexuality, and the regulation of sexuality declined markedly in comparison with the Old Regime. Despite their concern for promoting population growth and thus ensuring that infanticide was limited, the revolutionary legislators suppressed the requirement for pregnant, unmarried women to make declarations of pregnancy to the authorities. Prostitution was criminalized, but mainly because of concerns about the spread of sexually transmitted diseases, especially in garrison towns. Prostitutes were confined, treated for their illnesses, and instructed in the skills that would make them good republican wives and mothers. Sodomy, which had been a capital offense under the Old Regime, did not appear in the criminal or civil codes of the revolutionary period. The Napoleonic period following the Revolution restored the double standard more rigorously. A woman divorced for adultery was sentenced to imprisonment for a period of three months to two years.
Although adultery was thus a matter of concern to the state, which provided either punishment or remedies in civil law, premarital sex was generally deplored but not criminalized. At various times, however, states have developed policies involving unmarried women who became pregnant. In eighteenth-century France, for example, any unmarried woman who was pregnant had to make a declaration of pregnancy (déclaration de grossesse) to the police, in which she identified the man responsible and set out the circumstances of the pregnancy, that is, whether she was forced, coerced, persuaded, or willingly agreed to have sexual intercourse. The purposes were not specifically to repress premarital sexual activity or to punish sexually active unmarried women but rather to help the authorities ensure that the father of the child rather than the community paid for the child's birth and upkeep and also to minimize the chances that the woman would try to abort her child or kill it once it was born.
In this case one of the main underlying rationales for the apparent regulation of sexual activity was in fact the state's desire to increase the size of the nation's population. The authorities thought that many women practiced abortion or infanticide to the detriment of the state's demographic interest. They believed one way to reduce the incidences of both was to compel pregnant women to acknowledge their pregnancies and be held accountable if they could not produce a child when the authorities inquired.
A similar concern about burdening communities with illegitimate children was reflected in English legislation of 1576 and 1610. The first law gave justices of the peace the powers to investigate when a child was left in the charge of the parish, to order the parents to support the child, and to punish the parents. The 1610 law allowed justices to sentence mothers of illegitimate children in these cases to imprisonment in a house of detention for a year. Forty years later the law that provided the death penalty for incest and some cases of adultery also allowed imprisonment for three months of couples guilty of fornication.
Clearly it is not possible to generalize about the role of European states in regulating sexuality. In the early modern period immense variations existed among individual states. The rigor of legislation varied from one issue to another, as did enforcement. It can be argued, too, that it is important to consider not only regulations expressed in state law but also those that emanated from the church when the state effectively delegated legislative and judicial powers to it. In other words, state laws were only part of a broader apparatus that defined permissible sexual activities and sought to ensure conformity.
LEGISLATION AGAINST HOMOSEXUALITY
The full force of the state has been felt more frequently in the area of sexual activity between people of the same sex. The word "homosexuality" first appears in the nineteenth century, and until then and even afterward the law focused not on sexual orientation but on specific forms of behavior, generally sodomy or buggery. That is, individuals were defined, for the purposes of the law, not by orientation but by actions.
Secular laws against sodomy date from the Middle Ages. Although the statutes of late thirteenth-century Florence are incomplete and the specific penalties for sodomy are not clear, they did include exile from the city-state. Most secular legislation dated from the sixteenth century, and the first English example was a 1534 law of Henry VIII. Passed on the grounds that existing penalties were too lenient, this act made "buggery committed with mankind or beast" a felony that could be tried only in the secular courts. Conflating buggery and bestiality only highlighted the sense that homosexual activity was deemed an offense against nature.
In one of the most famous cases in early modern England, the earl of Castlehaven was prosecuted in 1631 for, among other offenses, raping his wife and sodomizing two of his male servants. Even then, however, circumstances that were not specifically sexual came into play. Castlehaven had encouraged his male servants, while he watched, to rape his wife and her daughter by a previous marriage, and this breach of the rule of social distance seriously aggravated the charge. Castlehaven and two of his servants were executed. Similar concern for the respective social classes of men involved in homosexual relationships was evident in prosecutions for sodomy in the Royal Navy in the seventeenth century. Sodomy was punishable in its own right but was considered more serious when it involved an officer and an ordinary seaman.
On the European continent other states also legislated against homosexuals in the wake of the Reformation. The 1532 penal code issued by the emperor Charles V included sexual intercourse between men, between women, and between humans and animals in the category of crimes against nature, and it provided the model for later Prussian legislation. Dutch military regulations and secular laws from the same period specified the death penalty for "unnatural misuses," with burning the usual prescribed form of execution. In practice penalties varied. In the eighteenth century only about 10 percent of convictions in the Netherlands resulted in execution. The rest were sentenced to corporal punishment, long periods of imprisonment (up to fifty years), and banishment. The last known execution of a man convicted of sodomy under Dutch law occurred in 1803.
Much legislation was directed at sodomy, and many cases focused on an age or class disparity between the parties involved. Legislation enacted in Florence in 1325 prescribed castration for a man convicted of sodomizing a boy, a fine of 100 lire for boys aged fourteen to eighteen who allowed themselves to be sodomized, and a fine of 50 lire or being flogged naked through the city for a boy under the age of fourteen who did likewise. The penalties applied to boys younger than fourteen were also applied to women involved in acts of anal intercourse. In the fifteenth century the Republic of Venice issued regulations to try to limit the "abominable vice" of sodomy in schools of music, gymnastics, fencing, and mathematics that brought men, especially older men and young boys, together in close quarters.
Lesbianism has been historically of less interest to legislators than male homosexual activity. It is arguable that lesbian sex was frequently viewed not so much repugnant as symptomatic of more fundamental offenses such as heresy. For this reason it might have been less important to secular legislators than religious legislators. But the use of an instrument that simulated heterosexual sex aggravated the offense of lesbian sex. Spanish law in the fifteenth century varied in its treatment of sexual activity between women depending on whether or not they used a dildo. Two women convicted of having a sexual relationship "without an instrument" were whipped and sent to the galleys, but two nuns who employed a dildo were executed by burning. Generally, however, known prosecutions of women for lesbian sex are few and far between in the early modern period: four in sixteenth-century France, two in Germany, and one each in Italy, Spain, Geneva, and the Netherlands. This is not to say that more did not occur, but the incidence was clearly low. It is notable that women charged as witches or heretics also were charged with related sexual offenses, but they usually were accused of engaging in heterosexual activities, including having sex with the devil.
In some European countries laws against sodomy stayed on the books for centuries with variations over time in terms of their enforcement. The English law of 1534 was reenacted several times, revoked twice, and soon reinstated—all before 1600. But after 1600 it remained essentially unchanged for two and a half centuries, until the late nineteenth century. Even though the death penalty was abolished in the 1820s for more than a hundred crimes, it was retained for buggery, rape, and sex with a girl under the age of consent, then thirteen years. Finally in 1861 legislation abolished the death penalty for sexual crimes, including rape. In 1885 the criminal law was amended to make "acts of gross indecency," which included all sexual acts between males, whether in public or private, and "procuring" males for such acts, punishable by imprisonment for up to two years with hard labor.
Other European states reformed their laws on homosexuality. Prussia abolished the death penalty for sodomy in 1851, and Scotland did so in 1889. But this did not imply toleration of homosexual relationships. The German Penal Code of 1875 punished "criminally indecent activity" with imprisonment for up to five years.
THE NINETEENTH AND TWENTIETH CENTURIES
During the nineteenth century the extension of activity by the state, in the context of growing concern about social stability, led to renewed interest in sexual morals. The broad-based "moral purity movement" focused on issues such as prostitution; white slavery, the insistence that large numbers of young European women were abducted and sold into sexual slavery in the Middle East and elsewhere; and the spread of venereal (sexually transmitted) diseases. Despite strong pressure from this movement, which also pressed for controls on alcohol and gambling, legislators were generally unwilling to attempt to regulate sexuality as broadly as some organizations wanted.
Nonetheless, states enacted legislation on some social issues whose associations were explicitly sexual. Concern about the spread of sexually transmitted diseases, particularly about their effects on military personnel, led the British Parliament to pass the Contagious Diseases Acts beginning in the 1860s. These laws gave the authorities powers to detain women suspected of being prostitutes and to have them examined for symptoms of sexually transmitted disease. The laws were applied with particular intensity in naval towns like Portsmouth, but after an outcry at the discriminatory character of these measures, which ignored the men who were also infected with diseases, the acts were eventually repealed.
In the late nineteenth century, too, eugenics influenced the policies of a number of states with respect to sexuality. Reflecting a widespread sense of a tendency toward physical, intellectual, and moral degeneration because unregulated procreation passed on undesirable traits from generation to generation, many eugenicists argued for education and voluntary restrictions on marriage and fertility. Others, however, urged governments to step in to stop what they called "the breeding of the unfit" that they believed was leading to "race suicide." In the late nineteenth century a number of states, including Sweden, began programs of sterilization to limit the fertility of men and women diagnosed as insane.
Again, however, homosexuality was the main form of sexual activity pursued by the state with much enthusiasm in the late 1800s. At the turn of the century several states were rocked by sensational trials under these laws, including those of Oscar Wilde in England in 1895 and a number of senior military personnel in Germany in the decades before World War I.
Throughout most of the twentieth century European states pursued a variety of policies toward sexuality. The general tendency was toward less intrusive and more liberal policies, in which the state did not try to regulate the parties to sexual activities or the nature of their sexual activities. These trends were by no means linear, nor did they occur at the same rate throughout Europe. Notable exceptions existed. In Nazi Germany laws forbade sexual relationships between "Aryans" and Jews. Although apparently conventional in many respects, Nazi policies on sex and the family were underpinned by racial and demographic agendas. Homosexuality, condemned as degenerate and useless for demographic purposes, was criminalized, and the number of prosecutions rose steadily, reaching eight thousand in 1938. After serving prison terms, thousands of homosexuals were sent to concentration camps. Adultery was retained in Nazi divorce law, primarily because adulterers ran the risk of having sex with unapproved partners. The regime set up a program called Lebensborn, under which racially approved women were impregnated by racially approved men to foster the development of a population the Nazis considered racially superior.
Such draconian policies toward sexuality as the Nazis' have been rare in European history. They were echoed in Romania in the 1980s, however, under the regime of Nicolae Ceauşescu. To promote population growth, Ceauşescu forbade the use of contraception and abortion and required women to undergo regular medical examinations to ensure that they were observing the law.
The last decades of the twentieth century witnessed a general decline in state legislation concerning sexuality. Laws against fornication and adultery had long disappeared. From the 1960s onward states liberalized laws concerning abortion and contraception and progressively decriminalized prostitution and homosexuality. Sexual relationships between homosexuals were decriminalized in England in 1967, and by the end of the 1970s they had ceased to be a crime in most West European states. Within another two decades policy shifted toward granting homosexuals positive legal rights, and in the 1990s several states, including Belgium, Denmark, and France, established registered partnerships that gave same-sex couples many of the legal rights and fiscal benefits that different-sex couples derived from marriage.
At the same time specific forms of sexual activity, notably those involving children and young people under the age of sexual consent, child pornography, and pedophilia, gained a higher profile. They evoked legislative responses in a number of European countries where there were well-publicized cases.
Research on the history of sexuality, including its regulation by state law, frequently reflects issues debated in contemporary society. A great deal of research by historians of sexuality in the 1970s and 1980s focused on women and gender. In the 1980s and 1990s more attention was devoted to homosexuality. The work of historians has contributed not only to knowledge of the historical experiences of men and women of all sexual orientations but also to the evolution of social attitudes toward sexuality and their expression in policy and legislation.
Whatever the specific theme they research, historians seek to historicize sexuality and to show that behavior, attitudes, and policies are best understood contextually. One result has been to deny that certain forms of sexuality and some sexual orientations, even if they are by far the most common, are "natural" or "normal." To this extent the historical work has helped inform debates on sexual issues.
As for sources, historians of sexuality are both rewarded and penalized by the place of sexuality in Western culture. On one hand, few dimensions of human behavior have been historically as widely debated as sexuality. Sexual attitudes and behaviors often have been used as surrogate measures for other events and conditions, such as the general level of social order and the state of morality in younger generations, and official documentation and public sources of all kinds provide a wealth of material. Moreover sex has long been a prominent theme in literature and art. All these sources pose problems of interpretation, but they represent a massive database in the search for elusive "social attitudes" toward specific forms of sexuality.
Yet, on the other hand, this mass of documentation deals with one of the most intimate and private dimensions of human activity. Few records of individual sexual lives exist, and few diarists recorded their sexual experiences and thoughts. The single source most commonly used by historians probing the sexual experiences of individuals, specific groups, or whole societies in the past is judicial records. Needless to say, these give invaluable insights into the regulation of sexuality and the ways in which certain offenses were disposed of by the courts. But they seldom reveal how cases were filtered through the policing and judicial processes. That is, no clear sense emerges of the extent to which the extant court cases were representative of more general behavior.
A number of historians have attempted to define certain periods as more permissive and others as more repressive in terms of both social attitudes and the regulation of sexuality. Some have argued that the late seventeenth-century Restoration was a hotbed of sexual activity and that the nineteenth-century Victorian era was one of intense sexual repression on both the individual and the social levels. Neither generalization seems convincing. While some evidence supports broad swings in several countries, the complexity of the issues involved makes generalizations difficult and hazardous. It is arguable that some examples of the regulation of sexuality were actually attempts to regulate the behavior of women. In other instances the rationale behind sexual control was a desire to increase population size or to limit the social implications of increasing numbers of illegitimate children. It is also important to look beyond the terms of legislation to understand the way laws were applied.
The relationship of the state, law, and sexuality is an important historical question, but it is necessary to recognize that sexuality is frequently and intimately associated with other major issues, such as class, gender, and authority. This is not to diminish the importance of the regulation of sexuality as a subject of historical investigation but to recognize its central importance in understanding the links between the private and the public dimensions of European history.
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