It is sufficient to reflect on these facts to see how difficult is the regulation of sexual connection by law. The legislation of details in this domain becomes of necessity an injustice.
We have already considered the great individual variability of the sexual appetite. Attempts to regulate it by the rules of a monogamous matrimonial code are absurd and impracticable. With all the respect due to the moral sentiments of Tolstoi, we are obliged to declare that his ascetic opinions on sexual relations are only the dreams of an enthusiast.
When a libidinous man marries a young girl who is sexually frigid, and when coitus continues to be a horror to his wife, it is quite as cruel to demand continence in the husband as submission in his wife. In such cases, the conditions can only be made tolerable by divorce, consent to concubinage, or bigamy, when a relative adaptation cannot be obtained by mutual concessions. At present our prejudices only allow divorce in such cases.
When a man and woman are already tied by pregnancy or by a child, and when, apart from the differences in their sexual appetites, love and concord reign between them, separation would be cruel.
I readily agree that such extreme circumstances should not be the rule, and that in many cases the one who is the more erotic can restrain himself, and the one who is cold become accustomed to coitus. Nevertheless, in the present chapter we are not concerned with morals but with rights, and we have only to reply to the question of knowing what should be done when, in sexual connection between two conjoints, one desires it and the other does not.
The concentration of sexual passion on a single individual, which is generally good from the social point of view, is fatal in these special cases. A man falls passionately in love with a woman, or a woman with a man, but instead of being reciprocal this love is despised by the other. Such a misfortune, which often leads to the most tragic consequences, not only in novels but also in real life, is only reparable by the renunciation of the one who loves. It is surely less cruel to renounce a proposed union than to become the sexual prey of a person one does not love. It is, therefore, inhuman and immoral, as much in religion as in poetry, to preach in any form, the exclusiveness of sentiments, the indissolubility of monogamous marriage, and the immutability of love.
It has often been stated that a woman can only love once in her life. Such a false and cruel generalization must be energetically opposed. It is the business of sentimental poets to delude themselves with such sentiments, but those who think it a duty to adhere to dogmas of this kind are to be pitied. It is not only death or illness of one of the conjoints, dissensions and infidelity, which may cause separation of a sexual union, but as is frequently the case, rejected love may transform into perpetual martyrdom the life of a person imbued with such ideas. The ascetic sentimentalism which results from this has a strong element of suggestion which is bad to cultivate.
If we would give the one who does not love the absolute right of repelling the sexual advances of the other, not only the law but morality should in return allow the rejected lover to make another choice, where his desire for love will find an echo.
At the present day many people, especially women, prefer to endure their unhappiness and even that of their children to the opprobrium to which they are often exposed by public opinion in divorce or remarriage, or even in becoming engaged to another person, when their love has been rejected. It is, therefore, the duty of the legislator to banish from the law everything which may appear to sanction such opprobrium.
Most laws recognize not only impotence, but also assault, cruelty, venereal disease, adultery, etc., as grounds for divorce, but the pressure of public opinion causes the existing laws to be too little used. We must remember that such violations of conjugal duties give the injured party the right of claiming damages.