Crime and Punishment in American History - Lawrence M. Friedman [81]
Control of Sexual Behavior
On the surface, the republican period carried on a rich, colonial tradition, committed to sexual control (or, more accurately, repression). There was no abrupt break with the past. By law, only married people were entitled to any kind of sex life at all, and only within narrow limits. Everything else was not only a sin, it was a crime. The laws of Maine from around the middle of the nineteenth century were fairly typical.3 Adultery was a crime, as were fornication, incest, and (of course) “the detestable crime against nature, committed with mankind or with a beast”—a crime so awful it was not even described, though presumably most people knew what was meant.z Any “open, gross lewdness and lascivious behavior” was also an offense. Similarly, it was a crime to cater to other people’s lewdness—by keeping a house of ill fame, by “inveigling” or “enticing” a (previously “virtuous”) woman into such a house, or by printing or selling obscene pictures or books. In the Illinois code of 1833, “public indecency, tending to debauch the public morals” was declared illegal.5
Reality was more complex. Take, for example, fornication. As we have seen, this crime was very commonly punished in some of the colonies. We have, of course, no way of knowing how many people got away with their dirty secret; we only know about those who were caught. There were literally thousands of these.
Harvesting fornicators required very precise social conditions, both cultural and structural. In the first place, enough people in the community had to find the act offensive. In modem California, fornication is not a crime at all; it has been relabeled and repackaged, and is, if anything, an esteemed, accepted way of life. In the second place, laws against fornication are hard to enforce except in small towns where everybody knows everybody else. In ports, big cities, communities of strangers, it is so much easier to hide your transgressions.
In the late eighteenth century and in the nineteenth, the criminal justice system paid less and less attention to victimless sex crimes. There were, as we saw, lots of prosecutions in the eighteenth century, but the point was not so much to make sinners squirm, as to squeeze money out of men who fathered bastards.6 In the late eighteenth century, the numbers began to decline. Linda Kealey studied indictments in the Superior Court of Massachusetts between 1750 and 1796, a period that straddles the Revolution. Only 4.3 percent of the indictments were for “moral and sexual crimes,” that is, fornication, adultery, incest, blasphemy, swearing, and sabbath violation.7
By the nineteenth century, the structural conditions had probably changed. Certainly, city growth and mobility made enforcement very chancy. Research on criminal justice in this period is skimpy, to say the least. The evidence, such as it is, suggests a fairly feeble level of enforcement. In Ohio County, Virginia, there were two hundred forty indictments for crimes and misdemeanors between 1801 and 1810; one was for sabbath breaking, four for bastardy, twenty-four for profanity; none were for fornication, adultery, or sodomy.8 In Marion County, Indiana, during the period 1823—60, prosecutions for sexual offenses (mainly fornication and adultery) made up 2.4 percent of the prosecutions in the county.9 This is a far cry from Puritan zeal.
Had the moral climate changed as well? Evidence here is even more slippery. Religious leaders, of course, had lost much of their grip. The statutes themselves, and the case law, provide indirect evidence of change in the inner meaning of laws against fornication and adultery. For the likes of Cotton Mather these were crimes because they went against