How sexual questions lead to conflicts with penal law, how penal law judges them, and how it ought to judge them after what we have just said, I can only refer to what I have said concerning civil law. Our present penal law is aware of singular sexual crimes and often punishes them from curious motives.
When a poor imbecile, ridiculed by women and overcome by his sexual appetite, copulates with a cow, the latter is not injured in any way; neither is the owner. Moreover, the question of property does not trouble the judge, for he punishes sodomy even when the culprit owns the animal. How does the law obtain the right to punish an act which does no harm to any one, nor to society, nor even to an animal? It is evidently a vestige of religious mysticism, something like punishment for sinning against the Holy Ghost. The sins of Sodom and Gomorrah, they say, caused the wrath of God, who destroyed these towns for this reason. According to the legend, sodomy was a vice of the inhabitants; is this why it is punished at the present day? But the masturbation of Onan, according to the Bible, also caused the wrath of God; why then do not our present laws institute punishment for those who practice it?
In many of the Swiss cantons and in Germany, sexual connection between men is prosecuted by law. The German legislators have even recently discussed the question whether punishment should be enforced only when the penis of one man is introduced into the anus of the other (pederasty), or whether indecent contact and mutual onanism are sufficient to justify punishment.
Our penal law is thus concerned with the question whether it should punish or not, according as this or that mucous membrane or part of the skin is used for the satisfaction of a morbid sexual appetite! These are truly singular points for a legislator to decide, compelled, in spite of his incompetence, to play the part of physiologist, anatomist and psychologist!
If I am correctly informed, the German legislation is inconsistent in punishing sexual intercourse between two men, but not between two women. These examples suffice to show what blind-alleys a penal law leads to, the basis of which is vicious and which is guided by the traditions of mysticism.
Quite recently, in the Swiss journal of penal law, a jurist seriously upheld the necessity for the conception of a crime against religion! Ideas of this kind would lead us to punish suicide, like the English.
We will now proceed to analyze the facts from the point of view of their true social value.
Limits of Penal Law in the Sexual Domain.—If we would avoid injustice and ridiculous contradictions, we should keep to the principle that penal justice has only the right to intervene in cases where individuals or society are injured, or run the risk of being injured. It is also necessary to examine, in each case, whether the person who has committed the offense was not irresponsible and affected with mental disease at the time; or whether his responsibility was not diminished, i.e., whether he was not seriously abnormal without being quite insane. The conception of responsibility, necessarily relative, should be understood in the sense of relative liberty, which we have defined above.
According to the result of the inquiry (culpability being proved) the judge will have to decide how society can be best protected against the repetition of such acts, and how the culprit may be most easily improved, provided he is capable of improvement.
If, for example, the culprit is an inebriate, his detention in a home for inebriates will protect society and benefit the individual much better than all the fines and imprisonments at present in force.