V. PATHOLOGICAL SEXUALITY IN ITS LEGAL ASPECTS.
The laws of all civilized nations punish those who commit perverse sexual acts. Inasmuch as the preservation of chastity and morals is one of the most important reasons for the existence of the commonwealth, the state cannot be too careful, as a protector of morality, in the struggle against sensuality. This contest is unequal; because only a certain number of the sexual crimes can be legally combated, and the infractions of the laws by so powerful a natural instinct can be but little influenced by punishment. It also lies in the nature of the sexual crimes, that but a part of them ever reach the knowledge of the authorities. Public sentiment, in that it looks upon them as disgraceful, lends much aid.
Criminal statistics prove the sad fact that sexual crimes are progressively increasing in our modern civilization.[[127]] This is particularly the case with immoral acts with children under the age of fourteen. The moralist sees in these sad facts nothing but the decay of general morality, and in some instances comes to the conclusion that the present mildness of the laws punishing sexual crimes, in comparison with their severity in past centuries, is in part responsible for this.
The medical investigator is driven to the conclusion that this manifestation of modern social life stands in relation to the predominating nervousness of later generations, in that it begets defective individuals, excites the sexual instinct, leads to sexual abuse, and, with continuance of lasciviousness associated with diminished sexual power, induces perverse sexual acts.
It will be clearly seen, from what follows, how such an opinion is justified, especially with respect of the increasing number of sexual crimes committed on children. It is at once evident, from what has gone before, that neuropathic, and even psychopathic, states are largely determinate for the commission of sexual crimes. Here nothing less than the responsibility of many of the men who commit such crimes is called in question.
Psychiatry cannot be denied the credit of having recognized and proved the psycho-pathological significance of numerous monstrous, paradoxical sexual acts. Law and Jurisprudence have thus far given but little attention to the facts resulting from investigations in psychopathology. Law is, in this, opposed to Medicine, and is constantly in danger of passing judgment on individuals who, in the light of science, are not responsible for their acts.
Owing to this superficial treatment of acts that deeply concern the interests and welfare of society, it becomes very easy for justice to treat a delinquent, who is as dangerous to society as a murderer or a wild beast, as a criminal, and, after punishment, release him to prey on society again; on the other hand, scientific investigation shows that a man mentally and sexually degenerate ab origine, and therefore irresponsible, must be removed from society for life, but not as a punishment.
A judge who considers only the crime, and not its perpetrator, is always in danger of injuring not only important interests of society (general morality and safety), but also those of the individual (honor).
In no domain of criminal law is co-operation of judge and medical expert so much to be desired as in that of sexual delinquencies; and here only anthropological and clinical investigation can afford light and knowledge. The nature of the act can never, in itself, determine a decision as to whether it lies within the limits of mental pathology, or within the bounds of mental physiology. The perverse act does not indicate perversion of instinct. At any rate, the most monstrous and perverse sexual acts have been committed by persons of sound mind. The perversion of feeling must be shown to be pathological. This proof is to be obtained by learning the conditions attending its development, and by proving the existence of a general neuropathic or psychopathic condition.
The species facti is important; but it allows, however, only presumptions, since the same sexual act, according as it is committed by an epileptic, paralytic, or a man of sound mind, takes on other features and peculiarities, in accordance with the manner in which it is done.
Periodical recurrence of the act under identical circumstances, and an impulsive manner in carrying it out, give rise to weighty presumptions that it is of pathological significance. The decision, however, must follow after referring the act to its psychological motive (abnormalities of thought and feeling), and after showing this elementary anomaly to be but one symptom of a general neuropathic condition,—either an arrest of mental development, or a condition of psychical degeneration, or a psychosis.
The cases discussed in the portion of this work devoted to general and special pathology will certainly be useful to the medical expert, in assisting him to discover the motive of the act. To obtain the facts necessary to allow a decision of the question whether immorality or abnormality occasioned the act, a medico-legal examination is required,—an examination which is made according to the rules of science; which takes account of both the past history of the individual and the present condition,—the anthropological and clinical data.
The proof of the existence of an original, congenital anomaly of the sexual sphere is important, and points to the need of an examination in the direction of a condition of psychical degeneration. An acquired perversity, to be pathological, must be found to depend upon a neuropathic or psychopathic state.
Practically, paretic dementia and epilepsy must first come to mind. The decision concerning responsibility will depend on the demonstration of the existence of a psychopathic state in the individual convicted of a sexual crime.
This is indispensable, to avoid the danger of covering simple immorality with the cloak of disease.
Psychopathic states may lead to crimes against morality, and at the same time remove the conditions necessary to the existence of responsibility, under the following circumstances:—
1. To oppose the normal or intensified sexual desire, there may be no moral or legal notions, owing to (a) the fact that they may never have been developed (states of congenital mental weakness); or to (b) the fact that they have been lost (states of acquired mental weakness).
2. When the sexual desire is increased (states of psychical exaltation) and consciousness simultaneously clouded, the mental mechanism is too much disturbed to allow the opposing ideas, virtually present, to exert their influence.
3. When the sexual instinct is perverse (states of psychical degeneration). It may, at the same time, be intensified.
Cases of sexual delinquency that occur outside of states of mental defect, degeneration, or disease, can never be excused on the ground of irresponsibility.
In many cases, instead of an abnormal psychical condition, a neurosis (local or general) is found. Inasmuch as the transitions from a neurosis to a psychosis are easy, and elementary psychical disturbances are frequent in the former, and constant in profound perversion of the sexual life, the neurotic affection—e.g., impotence, irritable weakness, etc.—exerts an influence on the motive of the incriminating act; and a just judge, notwithstanding the lack of legal irresponsibility due to mental defect or disease, will recognize the circumstances which ameliorate the heinousness of the crime.
For various reasons the practical jurist will, in all cases of sexual crimes, call medical experts to make a psychiatric examination.
To be sure, his own conscience and judgment must be the guides when necessity makes them his only reliance. Under the following circumstances indices are given which point to a pathological condition:—
The accused is senile. The sexual crime is committed openly, with remarkable cynicism. The manner of obtaining sexual satisfaction is silly (exhibition), or cruel (mutilation or murder), or perverse (necrophilia, etc.).
From what experience teaches, it may be said that, among the sexual acts that occur, rape, mutilation, pederasty, amor lesbicus, and bestiality may have a psycho-pathological basis.
In case of lust-murder,—in as far as it goes beyond murder itself,—and likewise in case of mutilation of corpses, psychopathic conditions are probable.
Exhibition and mutual masturbation make pathological states seem very probable. Masturbation of another and passive onanism may occur in connection with senile dementia and contrary sexual feeling, but also with mere sensuality.
Cunnilingus and fellare (penem in os mulieris arrigere) have not thus far been shown to depend upon psycho-pathological conditions.
These horrible sexual acts seem to be committed only by sensual men who have become satiated or impotent from excessive indulgence in a normal way. Pædicatio mulierum does not seem to be psychopathic, but rather a practice of married men of low morality, who wish to prevent pregnancy; and of satiated cynics in non-marital sexual indulgence.
The practical importance of the subject makes it necessary that the sexual acts threatened with punishment as sexual crimes be considered by jurists from the stand-point of the medico-legal expert. Thus there is an advantage gained, in that the psycho-pathological acts, according to circumstances, are placed in the right light by comparison with analogous acts that fall within the domain of physiological psychology.