UC Irvine

This thesis examines the effects of silence on sexuality law development in 19th century U.S. jurisprudence. Through qualitative and quantitative analysis of all Westlaw headnote case data on sodomy and close reading of a popular literary text, “silences” are traced to the production of the possibilities for sex criminalization in the 19th century and beyond. Early legal and literary narratives of silence produced in sodomy criminal, spiritual, and pathological dimensions and delayed jurisprudential definition of sex crime. Moreover, by the mid-19th century, narrative silence generated a legal crisis troubling the effects of silence on the law and relegating sodomy beyond the jurisdiction of the court. In turn, a totality of silence enabled dismissal of civil cases for failure to state a claim upon which relief can be granted. Subsequent interventions of post-Civil War law and new taxonomies of sexuality pathologizing criminal sex accelerated the codification and conviction of sodomy in the courts. By the end of the century, sex constructed vis-à-vis criminal pathology dominated the regulatory landscape of U.S. law and society, resulting in a systematized criminalization in the criminal, spiritual, and pathological legacy of silence.