CHAPTER XXIV
It is the evident duty of the State to protect society from certain manifestations of the sexual impulse, occurring publicly in the form of “offences against morality,” and whenever these manifestations interfere with the persons and the rights of citizens. The sexual impulse has been compared with a powerful stream, which, when confined to its natural bed, is a never-ending source of blessing to the surrounding country; but which, as soon as with elemental force it overflows its banks and gives rise to widespread floods, is the cause of unspeakable misery among the entire population.[673] This comparison would be just if the facts were as stated. But, as I have already pointed out, as a whole, sexual perversions have played a far smaller part in the decadence of fallen nations than has hitherto been assumed. The biological and economical history of civilization has taught us to recognize numerous other influences, which, in such a process of national decay, play at least as great a part as sexual “degeneration,” and in many cases a much greater part than this. Frequently, indeed, sexual perversions and unnatural modes of gratification of the sexual impulse are in the first place a consequence of economic and social abnormalities, and are intimately connected with the so-called social problem. The above-named stream, to pursue the image, only trickles over its banks here and there, without giving rise to any widespread and devastating flood. And so long as these destructive tendencies are wanting, the State has no right to take measures against sexual perversions, or at most can justly do so only by dealing with their social causes. In view of the extensive diffusion of sexual anomalies among persons who in other respects are perfectly healthy, we must ask ourselves whether the importance of these anomalies, in respect of the offences against morality to which in certain circumstances they may give rise, has not been overestimated. This idea has recently been put forward by J. Salgó, in his valuable monograph, “The Forensic Importance of Sexual Perversities” (Halle, 1907). I am more especially pleased to find that this author shares the view which I have myself advocated for years, that sexual perversities in the majority of cases are not indications of “degeneration,” as has been assumed both by psychiatrists and neurologists, especially under the influence of the doctrine of Möbius, who pushed this idea much too far. Moreover, the late Jolly, in his lectures to practising physicians upon sexual aberrations, expressly maintained the justice of my view of sexual anomalies as an anthropological phenomenon. With regard to the nature of sexual perversions, psychiatric science will have greatly to modify its general views, in order to attain an objective consideration of their significance.
“Psychiatry,” says Salgó (op. cit., pp. 37, 38), “must not follow the decoy-call of the law (which has wandered into a blind alley), by endeavouring to cover with the mantle of specialist science the serious legal errors in the matter of perverse sexuality. The incontestable domain of psychiatric experience in forensic questions is already sufficiently large, and it needs no artificial extension. But it is an artificial extension to indicate as morbid all the aberrations of sexual activity, or any single one of such aberrations, in the absence of indubitable or demonstrable symptoms of physical disturbance, and in the absence of a clearly recognizable and abnormal course—simply because they contravene the existing criminal law.”
The blind alley of psychiatry is the prison and the asylum. Because psychiatry is principally concerned with those sexual perversities which have criminal or psychiatric importance, with the abnormalities and the crimes of the sexually perverse, psychiatric science failed to recognize the extraordinarily wide diffusion of sexual perversions among persons who are mentally and physically healthy. Among the healthy, homosexuality, sadism, masochism, fetichism, etc., may make their appearance in more or less severe forms; just as other “vicious habits” may occur in the healthy, just as passionate tobacco-smoking, or intoxication with any sport, may become an ineradicable habit, or at least a habit extremely difficult to eradicate. Neither jurisprudence nor psychiatry can be spared the accusation of having misled “public opinion,” this terrible monster so often hostile to civilization, in respect of sexual perversities, regarding whose nature recent scientific research, and above all, anthropological research, has diffused a light. I am acquainted with a number of persons whose bodily and mental health is excellent, persons who are, indeed, imposing in respect of their primeval German racial force, who have assured me that they suffer from the most severe sexual perversions! Recall the description given on [p. 584] of a masochistic “slave” of the most extreme type. I do not go so far as Salgó, who demands for sexual anomalies, in so far as they are not criminal, the same “right of existence” ([p. 7]) as for the normal sexual impulse; but I do assert that sexual anomalies exist in individuals who are in other respects perfectly healthy, and that they do not always injure the personal health or the bodily and moral well-being of another, as is the case with sexual perversions arising upon a morbid foundation and attaining forensic importance. Above all, I must sharply condemn the fashion of glorifying sexual perversities, which have been regarded as a peculiar privilege of the highest mental development, and as corresponding to an especial refinement of sensibility. This assertion may be refuted by reference to the fact, often mentioned before, that the most incredible and most artificial sexual malpractices occur among savage races, who in this respect could give points to our modern decadents and epicurean æsthetes. In any case, sexual perversions in themselves have neither a moral nor a forensic importance, and must be regarded as more or less biological variations of the normal impulse.
Where, on the other hand, the public or individual interest is injured by these perversions, the State has unquestionably the right of intervention and the right of prevention. In every case in which we have to do with the production of a public nuisance, with the bodily or mental injury of other human beings, with the employment of force, with the misuse of the lessened or absent responsibility of children, of unconscious persons, of those asleep, and of those mentally disordered, society must intervene in its own interest, and must take suitable measures to protect itself against such offences. Now, it is certain—and to have established this is an honour to psychiatric science—that it is precisely these latter sexual offences which in the great majority of cases are committed by diseased persons and by those who are more or less irresponsible. Therefore, we are thoroughly justified in demanding that in every such criminal case, the bodily and mental condition of the accused should be subjected to a medical examination. A typical mental disorder, such as imbecility, epilepsy, alcoholic insanity, general paralysis of the insane, paranoia, etc., will be detected without difficulty, and thereby responsibility will at once be excluded. More difficult are the transitional stages between health and disease, the so-called “borderland cases,” the cases of “psychopathically deficient responsibility” and of “disequilibrium.” In forensic medicine two ideas play a very great part in this connexion, that of “degeneration” and that of “diminished responsibility.”
Every sexually perverse person must be examined for signs of severe hereditary taint, as well as for the so-called “stigmata of degeneration.” If we can prove that in his family there have been several instances of severe mental disorder, of alcoholism, syphilis, diabetes, and other diseases leading to degeneration, the suspicion that there is a psychopathic foundation for the sexual offence is justified. But we must insist that congenital taint does not make itself felt in every case, and cannot, therefore, always be made responsible as a causal influence in the production of a sexual perversion.[674]
The so-called “stigmata of degeneration” have importance only when they are very markedly developed, and when several of them are simultaneously present. We distinguish physical and mental stigmata degenerationis. To the former belong disturbances and inhibitions of development, malformations, such as asymmetry of the skull, narrowness of the palate, hare-lip, cleft palate, anomalies of the teeth and the hair, difficulties of speech, tic convulsif, abnormal and morbid states of the genital organs and genital functions, and more especially malformations of the ear, such as Morel’s ear (the complete or partial absence of the helix or antihelix), the Darwinian pointed ear, etc.[675]
The mental degenerative phenomena comprise all that are known as “bizarre or abnormal” characters; those who possess such characters are termed “eccentrics” and “originals,” or are known as persons “psychopathically below par” (J. L. A. Koch), as “disequilibrated” (Eschle), as “superior degenerates” (Magnan). These phenomena comprise peculiar disturbances of the harmony of the spiritual life, characterized by lack of balance between emotion and intellect, as well as by an abnormal irritability and undue reaction to stimulation. We may find complete absence of ethical perception, so-called “moral insanity,” of which E. Kraepelin and his school have proved that it may arise secondarily as a sequel to certain mental disorders. Striking in these unbalanced persons is the disharmony of the entire conduct of life, the internal lack of the point d’appui, the unsteadiness, the suddenness of their actions, which often occur under the influence of coercive ideas and abnormal impulses, the abnormally early appearance and the extraordinary intensity of the sexual impulse, the tendency to cruelty (O. Rosenbach). In judging the personality of the degenerate as a whole, we must always take into account the entire course of life, to which only too often the remark of Stifter applies: “In his life we saw only beginnings without continuations, and continuations without beginnings.”
On the other hand, we must not forget that many of the bodily stigmata of degeneration occur also in healthy persons, and that the existence of such stigmata in mentally disordered persons and in criminals may also be referred to social causes, to bad conditions of life and deficient nutriment, to alcoholism, syphilis, or rickets. For this reason P. Näcke[676] rightly insists that many of the so-called stigmata of degeneration are socially produced, and will therefore disappear with the employment of a purposive social hygiene; he gives as an example the rachitic bandy legs of English factory labourers. Therefore, for the proof of degeneration, we must lay more stress upon mental stigmata, upon abnormality of the spiritual personality, abnormality of its intellectual and emotional character, and from this proceed to infer the irresistible character of a morbid impulsive manifestation.
In addition to the study of the stigmata of degeneration, the study of tattooing is of forensic importance in the consideration of the sexual offences; the character and the date of the tattooing give sometimes interesting information regarding the nature of the personality.
Thus Lombroso[677] reports the case of an offender against morality, fifty years of age, with prominent ears and scanty growth of hair. This man ravished a girl of fifteen, whose mother was his mistress. At the early age of fifteen he had had the most obscene pictures tattooed upon his body; and upon inquiry he stated that he had begun to masturbate at the age of thirteen years, and had begun to have intercourse with women at the age of fifteen years. He denied the accusation of rape, and maintained that he had enjoyed the girl without using force. His tattooing, however, gave evidence of his capacity to commit sexual crime. The pictures served as a certain and important proof of this.
This appeared even more clearly in the case of the ravisher Francesco Spiteri, published by Dr. F. Santangelo in 1892, whose utterly immoral and sexually perverse mode of life was most wonderfully displayed and recorded by means of the tattooings by which his entire body was covered. It will suffice here to allude to the drawing of a fish and of seven points upon his membrum. This indicated that his penis (Italian, pesce = fish) since his youth had pædicated seven boys (= seven points)!
In the case of sexual offences we have to consider, in addition to the question of degeneration, that of diminished or entirely absent responsibility. In cases of unmistakable mental disorder, responsibility does not exist, nor in epileptic confusional states, nor in profound alcoholic intoxication.[678] Between complete irresponsibility and complete responsibility there are numerous transitional stages, which are all classified under the idea of diminished responsibility. This fact is not recognized by § 51 of the Criminal Code, which runs as follows:
“A punishable offence has not been committed when the accused at the time the action was performed was in a state of unconsciousness, or in a state or morbid disturbance of mental activity, by means of which his freedom of will was excluded.”
In this we find the idea of “morbid disturbance of mental activity,” which is definitely wider than the idea of mental disease, in so far as it embraces transient mental disorders in persons who are not suffering from definite mental disease; but it does not take into consideration the even more important notion of diminished responsibility, which is applicable to all the above described borderland states and transitional conditions lying between mental health and mental disease. Häussler (op. cit., p. 39) as long as eighty years ago demanded the recognition of the idea of diminished responsibility—that is, of a condition “in which responsibility for the action was diminished by an imperfectly developed intelligence, without the disturbance of intellectual activity being sufficiently great completely to abolish free voluntary determination” (Aschaffenburg). Since that time, by the address given on September 16, 1887, to the Association of German Alienists at Frankfort on “diminished responsibility,” Jolly opened a discussion upon this question. In this discussion the majority of German psychiatrists recommended the legislative recognition of such an idea, among these Wollenberg, Hoche, Cramer, Kirn, Aschaffenburg, von Schrenck-Notzing, etc.[679]
In connexion with diminished responsibility we must distinguish between individuals and actions. Among the individuals recognized above as persons “psychopathically below par,” responsibility may be diminished permanently and for a number of different actions; but in other cases healthy normal individuals may exhibit diminished responsibility in respect of isolated actions, when, for example, an excessively strong emotion, or a state of acute intoxication, has for a certain time and in relation to a particular action abrogated responsibility. In this connexion, in addition to acute alcoholic intoxication, certain sexual processes have especially to be considered. Häussler recognized the influence of the sexual impulse upon responsibility, and considered that certain actions performed under the influence of that impulse were performed without complete responsibility, and he declared that the voluptuary was a person whose mental health was imperfect.[680] Forel[681] also regarded the “slaves of the sexual impulse” as mentally abnormal, as individuals whose responsibility was diminished. I consider it indisputable that sexual emotions, especially when they arise suddenly, diminish responsibility, and limit, to some extent at least, the freedom of voluntary determination. Regarding certain processes of the vita sexualis, such as the epoch of puberty in both sexes, regarding menstruation, pregnancy, and the climacteric in women, this fact has been already generally recognized. It ought, however, to be admitted regarding the sexual impulse in general, more especially when the whole character of the action proves that it has been the consequence of a suddenly arising powerful emotion. Von Krafft-Ebing also is of this opinion.[682] It is, moreover, in most cases possible to determine whether the offence was caused only by a powerful sexual emotion, by means of which the intelligence and the freedom of the will of a person, in other respects normally responsible, were temporarily limited or completely arrested; or whether other motives intervened, so that the action must be regarded as the result of conscious choice.
In conclusion, another point must be considered, which is related to the question of sexual offences committed with children, and which possesses forensic importance. This is the circumstance that in many such cases there is no question of the “seduction” of children, but that, on the contrary, the incitation first proceeded from the children themselves. In the previous chapter we discussed the early appearance of sexual activity in children. Moreover, in such cases we could distinguish between a nobler and a grosser, more sensual love.
As an example of the former, I may allude to the ardent, affectionate love of a girl of twelve for a thoroughly honourable man of forty years of age, who certainly had no idea of sexual intimacy with the child, and who was unable to free himself from her passionate caresses. We often observe such intimate inclinations on the part of young girls towards mature men, and we must be careful in such cases to avoid immediately thinking of pædophilic unchastity.
In another case a mother complained that her daughter, seven years of age, was in continual pursuit of a boy of fourteen, and could not be cured of the affection.
Maria Lischnewska reports (“Mutterschutz,” 1905, p. 155) the case of a boy, not yet six years of age, who drew up the nightgown of his foster-mother, and endeavoured to have intercourse with her.
The sexual offences committed by clergymen and tutors upon the girls taught by them are apt to be seen in a different light when we subject the youthful accuser to a strict cross-examination, and, in addition, to a physical examination, whereby in many cases we bring to light the fact that, long before the recent offence, they have been accustomed of their own free will to have sexual relations with other men. Casper long ago drew attention to these circumstances. Very often from the pupil herself proceed actual advances of the worst kind, which have proved ruinous to many a young teacher whose morals were previously above reproach.
Finally, there is an important point which must not be forgotten: the untrustworthy character of childish evidence, a matter which has recently been discussed by the specialist Adolf Baginsky.[683] This writer, whose knowledge of childish psychology is so profound, remarks:
“The evidence given by children in the law-courts appears to those who are really familiar with the child mind to be absolutely worthless and utterly devoid of importance, and this is the more the case the more frequently the child repeats its statement, and the more firmly it sticks to its evidence.”
He alludes to the law of Sweden, according to which the child is not competent to give evidence in a law-court before the completion of its fifteenth year.
All these circumstances must be considered in relation to the question of the so-called “age of consent.” M. Hirschfeld justly remarks that the natural age of consent is equivalent to that at which a child is competent to make a choice (“The Nature of Love,” p. 284). I consider that the decision of the Italian Criminal Code is the best; by this Code the age of consent for both sexes is placed at the conclusion of the sixteenth year.
The majority of crimes committed from purely sexual motives belong to the crimes of passion, in the sense of Ferris, and indeed to crimes committed under the coercion of the most powerful of organic impulses. I doubt whether the existing punishments are the most suitable for the purpose for which they are designed. In any case, gentleness is here above all demanded, and we should invoke the saying, “Judge not, that ye be not judged!” Indeed, an evangelical minister[684] speaks truly when he says:
“The enormous majority of men and women, who constitute themselves the judges of offences against morality, whilst they themselves take every opportunity of infringing the moral laws they profess to uphold—lie day after day, throughout their whole life—their position is built upon hypocrisy and lies.”
It very rarely happens that a judge who condemns a thief or a murderer has himself been guilty of this crime, but without doubt it frequently happens that a judge condemns other men on account of sexual offences which he has himself committed. In the case of sexual crimes we almost always have to do with individuals to whom more good could be done by medical influence than by imprisonment; we must entrust the physician with the duty of protecting society against such offenders. “In this province, physicians will become the judges of the future,” says M. Hirschfeld most justly.[685] Until this end is attained, let us remind German judges of an anecdote which I found in an old French encyclopædia:[686]
“A courtesan in Madrid killed her lover, on account of his unfaithfulness; she was condemned and brought before the king, from whom she hid nothing. The king said to her: ‘Thou hast loved too much to be a reasonable being.’”
[673] E. Weisbrod, “Offences against Morality before the Law Courts,” p. 5 (Berlin and Leipzig, 1891). Cf., regarding offences against morality, in addition to the above-mentioned work of Tardieu, the interesting “Notes et Observations de Médecine Légale: Attentats aux Mœurs,” by H. Legludic (Paris, 1896); also P. Viazzi, “Sur Reati Sessuali” (Turin, 1896); L. Thoinot, “Attentats aux Mœurs et Perversions du Sens Génital” (Paris, 1898); Toulouse, “Les Délits Sexuels,” published in “Les Conflicts Intersexuels et Sociaux,” pp. 318-326 (Paris, 1904). Regarding offences against morality from the forensic standpoint, see also the comprehensive work of Mittermaier, “Crimes and Offences against Morality” (Berlin, 1906), which contains a comparative account of the legislative enactments of the principal countries of Europe. In addition, consult J. Werthauer, “Offences against Morality in Large Towns” (Berlin, 1907).
[674] Cf. Th. Ziehen, “Degeneratives Irresein,” in Eulenburg’s “Realenzyklopädie,” vol. v., p. 448 (Vienna, 1895); A. Hoche, “Handbook of Forensic Psychiatry,” p. 413.
[675] Cf., in this connexion, P. Näcke, “The Value of the So-called Stigmata of Degeneration” (Archives of Criminal Psychology, May, 1904), and “The Great Value of Certain Signs of Degeneration” (Archives of Criminal Anthropology, 1904, vol. xvi., pp. 181, 182). The most important, according to him, are stigmata of the head and of the genital system, on account of the relationships to the brain and to the reproductive organs. Disturbances of development of the auricle are not so important as those of the globe of the eye (absence of the iris, nystagmus, opacities of the lens, coloboma iridis, ptosis, microphthalmus, anophthalmus, colour-blindness, etc.). Penta has recently drawn attention to the importance and frequency of anomalies of the sexual organs in stuprators and in the sexually perverse (cf. Archives of Criminal Anthropology, 1904, vol. xvi., p. 343; cf. also the observations of Matthaes, quoted in note [490], [p. 477]).
[676] Paul Näcke, “Criminality and Insanity in Women,” pp. 154-156 (Vienna and Leipzig, 1894).
[677] C. Lombroso, “Recent Advances in the Study of Criminality,” pp. 177, 178.
[678] Cf. G. Aschaffenburg, “Responsibility in Mental Disease,” published in Hoche’s “Handbook of Forensic Psychiatry,” pp. 13-47.
[On the question of “Responsibility in Mental Disease,” English readers will naturally refer to Maudsley’s classical work bearing this title, published in the International Scientific Series.—Translator.]
[679] Cf. A. von Schrenck-Notzing, “The Question of Diminished Responsibility, etc.,” published in “Crimino-Psychological and Psychopathological Studies,” pp. 76-101 (Leipzig, 1902).
[680] Häussler, op. cit., p. 39.
[681] A. Forel, “The Responsibility of Normal Human Beings,” p. 21 (Munich, 1901).
[682] Von Krafft-Ebing, “Psychopathia Sexualis,” p. 331.
[683] Adolf Baginsky, “The Impressionability of Children under the Influence of their Environment,” published in Medizinische Reform, edited by Rudolf Lennhoff, 1906, Nos. 43, 44 (especially pp. 533, 534).
[684] “Another Conventional Lie: Studies concerning Love, Marriage, and Morality,” by an Evangelical Clergyman, p. 7 (Leipzig).
[685] Kraepelin (“The Question of Diminished Responsibility,” published in the Monatschrijt für Kriminal-Psychiatrie, 1904, No. 8) pleads that the necessity for imprisonment should be determined, not by judges, but by medical “crimino-pedagogues,” and he demands “places of secure restraint” (“Sicherungsanstalten”), differing in character from ordinary prisons, for the detention of criminals whose responsibility is diminished. Similarly, P. Näcke (“The So-called Moral Insanity,” p. 60; Wiesbaden, 1902), considers that the prison should be transformed into a kind of “hospital and educational institution.”
[686] “Encyclopediana ou Dictionnaire Encyclopédique des Ana,” p. 59 (Paris, 1701).
CHAPTER XXV
THE QUESTION OF SEXUAL ABSTINENCE (DIE ENTHALTSAMKEITSFRAGE)
“O heiliger Büsser, folg’ ich dir,
Folge ich dir, Frau Minne?”
Eduard Grisebach.
[“Holy Penitence, art thou my aim,
Or is it thou whom I pursue, lovely woman?”]