For students of sexual behavior and gender relations, the law is of obvious and unique importance as a social construct. This is particularly true for explorations of historical research settings not productive of social surveys or other artifacts of contemporary public opinion. The law is dynamic and a consequence of its particular place and time. It demonstrates what society (or at least some powerful group within it) does about particular behaviors considered deviant, not just what it says and appears to think about them. Appreciation of society’s attitude toward behaviors defined as criminal must accordingly be informed by an understanding of patterns of application of the law as well as its substance. This is true for all crimes but especially those whose proscription reflects moral values of varying popular strength. Reliance on legal substance alone can lead to conclusions that are ill-informed and even inaccurate. Deviant behaviors can be condemned, even criminalized, over time in what appears to be a very consistent fashion, but treated by the legal system very differently at different points in time in ways not indicated by changes in the content of the law.
An instance in point, and one of some relevance to the analysis presented here, concerns the crime of sodomy in English law. Between 1533 and 1861, this was a capital offense. 1 Although the legal requirements for the proof of this crime changed somewhat during this period, its punishment was determined by the same capital statute. However, policies in the application of this statute changed considerably within this period. Few prosecutions were brought before the 1800s, even fewer convictions were obtained and fewer executions carried out. It has been suggested that more than fifty homosexuals were put to death in England and Wales between 1800 and 1835, far more than were executed in the entire eighteenth century. 2 Intensification of homophobia in the early nineteenth century is clear: Execution is certainly a powerful social reaction. It is also a reaction hard