- Shifting the Scene of the Crime:Sodomy and the American History of Sexual Violence
The U.S. Supreme Court's decision in Lawrence v. Texas in 2003 was a triumph for the field of the history of sexuality. The majority decision declaring the state's sodomy law unconstitutional not only relied heavily on a historical argument but also drew extensively on recent historical scholarship to support its position. Writing for the majority, Justice Anthony M. Kennedy argued that early American sodomy laws were directed at nonprocreative behavior generally, not at homosexual conduct in particular, and, in practice, were not enforced against consenting adults acting in private. As such, there were no ancient roots supporting the proscription of consensual sodomy, as the 1986 Bowers decision, which upheld sodomy laws, had claimed. Those were the very arguments made in the brief put together by George Chauncey and a group of leading historians.1
But there is a further plank to Justice Kennedy's historical argument that is mentioned only in passing in the historians' brief and that has attracted little comment in the aftermath of the decision.2 In arguing that sodomy laws had not been enforced against consenting adults acting in [End Page 223] private, Kennedy noted that "a substantial number of sodomy prosecutions and convictions . . . were for predatory acts against those who could not or did not consent." The substance of Kennedy's argument came from a brief submitted by the Cato Institute and written by legal scholar William Eskridge. Kennedy quoted one piece of Eskridge's evidence, the treatment of sodomy in a nineteenth-century legal treatise; the other basis for the claim was the nature of the handful of sodomy cases in law reports before 1900, almost all of which dealt with coerced sex.3 The lack of any further evidence reflects the lack of a sustained historical analysis of sodomy in terms of the history of sexual violence. Justice Kennedy's decision highlights that gap; Justice Antonin Scalia's dissent gives added importance to filling it. Historians have shown that sodomy was not simply concerned with same-sex behavior, but they have not been able to elaborate what, in practice, it was concerned with, making it all too easy for Justice Scalia to continue to emphasize the criminalization of sodomy rather than the nature of that regulation, the law rather than its meaning in practice.4
This article first examines why sodomy has not been analyzed as sexual violence—that is, why sodomy prosecutions have not been part of the history of rape and how gay history has analyzed sodomy cases. It then traces the history of sodomy as part of the history of sexual violence to establish that the use of sodomy to punish sexual violence has long roots in American history, stronger roots than those that exist for the more recent use of the law to prosecute consensual acts. It is not only the nature of acts prosecuted as sodomy that gave the law that character but also the parallel between those acts and their treatment in the law and that of sexual assaults on women and girls. That parallel has significance also for understanding sexual violence generally, requiring a new, broader framework that recasts gender as only one of the identities and hierarchies created by coercion.
Different Gender, Different Law, Different Issues: Same-Sex Acts and the History of Rape
The text that is commonly regarded as launching historical research on rape, Susan Brownmiller's Against Our Will: Men, Women, and Rape, published in 1975, was a manifesto for a broad history of sexual violence. The crime of rape provided the starting point for Brownmiller's analysis, but, reflecting a feminist politics concerned with acts that women experienced as sexual assault that did not fall within legal definitions, she ranged far beyond that legal category. Most of the analysis examined rape as an exercise of power [End Page 224] derived from gender, but Against Our Will also included a chapter on power derived from emotional or social authority in which Brownmiller discussed assaults on children and "homosexual rape." However, having little material to work with, the treatment of victims other than...