Sex in history, by Gordan Rattray Taylor

The law of divorce has moved a little in the direction of attempting to ensure that a marriage shall be a real and not just a nominal relationship, by permitting divorce where one partner is insane, or where one partner has been deserted by the other for at least three years immediately preceding the petition, and it also recognizes persistent physical cruelty as a cause for divorce. But it does not recognize as a cause any form of incompatibility, hatred or mental cruelty. It thus has some way to go before it reaches the position obtaining in the tenth century when various grounds, such as marked religious differences, barrenness and the capture of one party by the enemy were recognized by the Church as reasons for annulment.

Since today adultery is well established as a ground for divorce, it is worth pointing out that the principle was only established in 1923. Before that time, although a man could obtain divorce (and, earlier, annulment) for a wife’s unfaithfulness, a wife had no corresponding right. A husband’s adultery was a sin, entailing punishment, but did not affect the validity of the marriage. A wife’s adultery was both a sin and an offence against the husband’s property rights, and it was the latter fact which justified the divorce. A bill to make the breakdown of marriage the justification for divorce is still before Parliament.

HOMOSEXUALITY, etc.: In 1967, Parliament legalized homosexual acts between consenting adults in England and Wales but not in Scotland, ~ thus superseding the 1885 act which prohibited ‘gross indecency’ (i.e. mutual masturbation or oral practices) between males, even in private. The 1885 act prescribed severe penalties for anal intercourse, whether homosexual or otherwise. Thus heterosexual anal intercourse is still illegal. The attempt to control private behaviour echoes canon law, and the parallel with the mediaeval penitentials is enhanced by the fact that they treated oral practices as the most heinous of all sins. However, the penitentials also condemned this behaviour between persons of opposite sex, which modern law does not; so that, in forbidding an act which has no social consequences in one set of circumstances but not in another, the law is not even consistent in its mediaevalism.

Unlike canon law, however, the law does not recognize self-abuse and the sexual perversions.