846
Sex psychopath legislation
were handled by these two parallel bodies: the svstem of ecclesiastic�] cou rts and the High Commission. As�ignment _ was detcrmmed 111 part by the offender's economic and social rank. Contrary to what might be expected, the penalties assessed by the High Commission were sometimes more se vere than those assessed bv the ecclesiastical courts for simi lar o�lens�s: By: th� time �f the Puritan ascendancy and the English Civil \\, ar m the middle of the 17th centurv when t�e �nglish monarchy was abolished, both ecclesiasti��ljuris d1ct1on and the High Commission had fallen into disuse. �!though the former was restored along with the monarchy m 1660, the period of existence without such devices had demonstrated a lack of need. Over the centuries, either by creation of specific statutes or common law assumption of general jurisdiction, the common law courts gradually took charge of offenses within the do main of marital and sexual aberration. In the reign of Henrv VIII (1507-1547) a specific statute was created to deal with "unnatural offenses." As one index of behavior believed to need legal regulation at the time, bigamv became a crime in 1603. The influence of the ecclcsia�tica'l courts lingered in En�land by way of their retention of jurisdiction over divorces until 1857 when special "divorce courts'' were created. Over the last century in England various sexual offenses acts ,vere enacted based m1 different aims that w · ere often in conflict, such as prohibiting sexual acts believed immoral bv wav of �he criminal law even though the utilitarian goal of 'prev�nt mg demonstrable harm was not in question. Medley of sex enactments
\'Vithout laboring further the course in England, it can be _ pomted out that the sex laws that emerged consisted of a medley of enactments from many historical periods. These were often couched in quaint language and perhaps imposed
Background heritage
847
maximum penalties that had little connection either with the harmfulness or prevalence of a particular offense. Historical surveys point out the haphazard manner in which sexual acts have been incorporated into the criminal law to serve a variety of purposes, not only in England but also in the United States and most other countries. For example, in En gland intercourse per anum by a man with his wife (buggery) is still subject to life imprisonment while the same act between two males in private is not a crime. 2 However, at least En gland has been free of the special types of sex statutes that emerged in the 'Cnited States providing for different rules for commitment, detainment, treatment, and release. In colonial America, fornication and "lewd and lascivious" or "wanton behaviors" were the most frequently punished sexual offenses. Since these terms lacked precise meaning, they were applied as required. 3 Behaviors such as prostitu tion, abduction, or certain sexual dalliances were also forbid den. "Treatment" ideas were tied to "bodily punishment" (e.g., public whippings in the market place where half of them took place). Ideas of punishment to prevent recurrence of individual sexual transgressions were fused with ideas of deterring others. Within the group of "sexual transgressors," about three-fourths were fornicators and usually included the younger people in the population. 4 Such data are proba bly similar to what would be obtained today if such an en forcement were to take place. Current studies indicate that the largest percent of increase in nonvirginal adult women may actually have occurred 50 years ago, with the proportion resting at about 50 percent since the 1920s. 5 The rate may be increasing since, according to one national survey, 46 per cent of all unmarried women in the Cnited States have en gaged in sexual intercourse by age 19. 6 However, no one argues that these figures were approached during colonial times. Colonial Massachusetts during the 17th century can be
