2.2 Regulation and the Role of Religion

Part: 
Two
Chapter: 
2

When earlier social inhibitions about public descriptions and depictions of sexuality and sexual practices came to be enforced by law, it was largely in the context of religious rather than secular concerns. Moreover, the earliest enforcement efforts were directed not against descriptions or depictions of sex itself, but only against such depictions when combined with attacks on religion or religious authorities.

This phenomenon of regulation in defense of religion rather than in defense of decency can be seen by the tolerance, at least in European cultures, of secular bawdiness up to the middle of the seventeenth century. Although many European countries rigidly controlled written and printed works from medieval times through the seventeenth century, this control was exercised only in the name of religion and politics, and not in the name of decency. In one legal form or another, and in secular as well as ecclesiastical tribunals, heresy, blasphemy, treason, and sedition were all severely sanctioned, but sexually explicit representations alone were rarely treated as a matter justifying punishment or restraint. Perhaps the best example of this phenomenon was the action of the Council of Trent in 1573, when it permitted publication of a version of Boccacio's Decameron in which the sinning priests and nuns were converted into sinning members of the laity.

If we focus on England, from which our legal system emerged, it is commonly acknowledged that sexuality itself was not treated as a matter for governmental legal concern until 1663. That year saw the conviction in London of Sir Charles Sedley, but the activity for which he was convicted hardly looks like a case involving pornography.[7] Instead, Sedley was convicted of the crime of committing a breach of the peace for getting drunk, removing his clothes, uttering profane remarks, and pouring urine on the crowd below the tavern balcony on which he was standing at the time. Although Sedley's profane remarks included words, there seems little doubt that he would have been convicted even had he remained silent. The significance of this case, therefore, lies in the fact that mere indecent behavior, absent any attack on religion, and absent any challenge to secular authority, was for the first time perceived to be something deserving of governmental involvement. Prior to Sedley's case, government stepped in to protect the person and his property, to protect the authority of the state, and to protect the church. With Sedley's case came the beginning of a broader range of governmental concerns, and thus Sedley's case is properly seen as the precursor of most modern regulation of sexually explicit materials.

Even after Sedley's case, the common law was hardly eager to come to the defense of decency. Throughout the seventeenth and eighteenth centuries, common law courts in England were only occasionally asked to take action against the kind of material that would then have been considered pornographic. Even when asked, the courts were often reluctant to respond. In 1708, for example, James Read was indicted in London for publishing an extremely explicit book entitled The Fifteen Plagues of a Maidenhead. The Queen's Bench court, however, dismissed the indictment, and Lord Justice Powell's statement provides an apt summary of the general reaction of the law to sexually explicit materials until very late in the eighteenth century:

"This is for printing bawdy stuff but reflects on no person, and a libel must be against some particular person or persons, or against the Government. It is stuff not fit to be mentioned publicly; if there should be no remedy in the Spiritual Court, it does not follow there must be a remedy here. There is no law to punish it, I wish there were, but we cannot make law; it indeed tends to the corruption of good manners, but that is not sufficient for us to punish."[8]

Not all of the common law reaction to sexual explicitness absent religious blasphemy was the same. In 1727 Edmund Curll was convicted for corrupting public morals on account of his publication of Venus in the Cloister, or the Nun in Her Smock,[9] and the Crown's attack on John Wilkes, largely on the basis of his activities as political dissident, included prosecution for publishing his highly explicit Essay on Woman.[10] Yet at about the same time, in 1748 to be exact, the publication of John Cleland's Memoirs of a Woman of Pleasure, better known as Fanny Hill, took place without either public outcry or governmental intervention.

The history of the English experience with sexually explicit materials is largely paralleled by the experiences in other European countries, and in the English colonies, including those in North America. As the world entered the nineteenth century, it remained the case that in most of the world there was greater tolerance for sexually explicit writing, printing, and drawing than there would be fifty years later, and that governmental action against spoken, written, or printed materials remained largely devoted to protecting the authority of the state and to protecting the integrity and values of religion.

Notes

  1. King v. Sedley, 1 Keble 620 (K.B.), 83 Eng. Rep. 1146 (1663).
  2. Queen v. Read, Fortescue's Reports 98, 92 Eng. Rep. 777 (1708).
  3. Dominus Rex v. Curll, 2 Str. 789, 9:1 Eng. Rep. 849 (1727). Because the religious aspects of this book were antiCatholic, it seems safe to conclude that protection of religion was no part of the governmental desire to indict or to convict.
  4. The King v. John Wilkes, 2 Wils. K.B. 151, 95 Eng. Rep. 737 (1764), 4 Burr. 2527, 98 Eng. Rep. 327 (1770).