The only large European countries in which homosexuality per se remains a penal offense appear to be Germany, Austria, Russia, and England. In several of the German States, such as Bavaria and Hanover, simple homosexuality formerly went unpunished, but when the laws of Prussia were in 1871 applied to the new German Empire this ceased to be the case, and unnatural carnality between males became an offense against the law. This article of the German Code (Section 175) has caused great discussion and much practical difficulty, because, although the terms of the law make it necessary to understand by widernatürliche Unzucht other practices besides pædicatio, not every homosexual practice is included; it must be some practice resembling normal coitus. There is a widespread opinion that this article of the code should be abolished; it appears that at one time an authoritative committee pronounced in favor of this step, and their proposition came near adoption. The Austrian law is somewhat similar to the German, but it applies to women as well as to men; this is logical, for there is no reason why homosexuality should be punished in men and left unpunished in women. In Russia the law against homosexual practices appears to be very severe, involving, in some cases, banishment to Siberia and deprivation of civil rights; but it can scarcely be rigorously executed.
The existing law in England is severe, but simple. Carnal knowledge per anum of either a man or a woman or an animal is punishable by a sentence of penal servitude with not less than three years, or of imprisonment with not more than two years. Even "gross indecency" between males, however privately committed, has been since 1885 a penal offense.[[270]] The clause is open to criticism. With the omission of the words "or private," it would be sound and in harmony with the most enlightened European legislation; but it must be pointed out that an act only becomes indecent when those who perform it or witness it regard it as indecent. The act which brought each of us into the world is not indecent; it would become so if carried on in public. If two male persons, who have reached years of discretion, consent together to perform some act of sexual intimacy in private, no indecency has been committed. If one of the consenting parties subsequently proclaims the act, indecency may doubtless be created, as may happen also in the case of normal sexual intercourse, but it seems contrary to good policy that such proclamation should convert the act itself into a penal offense. Moreover, "gross indecency" between males usually means some form of mutual masturbation; no penal code regards masturbation as an offense, and there seems to be no sufficient reason why mutual masturbation should be so regarded.[[271]] The main point to be insured is that no boy or girl who has not reached years of discretion should be seduced or abused by an older person, and this point is equally well guaranteed on the basis introduced by the Code Napoléon. However shameful, disgusting, personally immoral, and indirectly antisocial it may be for two adult persons of the same sex, men or women, to consent together to perform an act of sexual intimacy in private, there is no sound or adequate ground for constituting such act a penal offense by law.
One of the most serious objections to the legal recognition of private "gross indecency" is the obvious fact that only in the rarest cases can such indecency become known to the police, and we thus perpetrate what is very much like a legal farce. "The breaking of few laws," as Moll truly observes, regarding the German law, "so often goes unpunished as of this." It is the same in England, as is amply evidenced by the fact that, of the English sexual inverts, whose histories I have obtained, not one, so far as I am aware, has ever appeared in a police-court on this charge.
It may further be pointed out that legislation against homosexuality has no clear effect either in diminishing or increasing its prevalence. This must necessarily be so as regards the kernel of the homosexual group, if we are to regard a considerable proportion of cases as congenital. In France homosexuality per se has been untouched by the law for a century; yet it abounds, chiefly, it seems, among the lowest in the community; although the law is silent, social feeling is strong, and when—as has been the case in one instance—a man of undoubted genius has his name associated with this perversion it becomes difficult or impossible for the admirers of his work to associate with him personally; very few cases of homosexuality have been recorded in France among the more intelligent classes; the literature of homosexuality is there little more than the literature of male prostitution, as described by police-officials, and as carried on largely for the benefit of foreigners. In Germany and Austria, where the law against homosexuality is severe, it abounds also, perhaps to a much greater extent than in France;[[272]] it certainly asserts itself more vigorously; a far greater number of cases have been recorded than in any other country, and the German literature of homosexuality is very extensive, often issued in popular form, and sometimes enthusiastically eulogistic. In England the law is exceptionally severe; yet, according to the evidence of those who have an international acquaintance with these matters, homosexuality is fully as prevalent as on the Continent; some would say that it is more so. Much the same is true of the United States, though there is less to be seen on the surface. It cannot, therefore, be said that legislative enactments have very much influence on the prevalence of homosexuality. The chief effect seems to be that the attempt at suppression arouses the finer minds among sexual inverts to undertake the enthusiastic defense of homosexuality, while coarser minds are stimulated to cynical bravado.[[273]]
As regards the prevalence of homosexuality in the United States, I may quote from a well-informed American correspondent:—
"The great prevalence of sexual inversion in American cities is shown by the wide knowledge of its existence. Ninety-nine normal men out of a hundred have been accosted on the streets by inverts, or have among their acquaintances men whom they know to be sexually inverted. Everyone has seen inverts and knows what they are. The public attitude toward them is generally a negative one—indifference, amusement, contempt.
"The world of sexual inverts is, indeed, a large one in any American city, and it is a community distinctly organized—words, customs, traditions of its own; and every city has its numerous meeting-places: certain churches where inverts congregate; certain cafés well known for the inverted character of their patrons; certain streets where, at night, every fifth man is an invert. The inverts have their own 'clubs,' with nightly meetings. These 'clubs' are, really, dance-halls, attached to saloons, and presided over by the proprietor of the saloon, himself almost invariably an invert, as are all the waiters and musicians. The frequenters of these places are male sexual inverts (usually ranging from 17 to 30 years of age); sightseers find no difficulty in gaining entrance; truly, they are welcomed for the drinks they buy for the company—and other reasons. Singing and dancing turns by certain favorite performers are the features of these gatherings, with much gossip and drinking at the small tables ranged along the four walls of the room. The habitués of these places are, generally, inverts of the most pronounced type, i.e., the completely feminine in voice and manners, with the characteristic hip motion in their walk; though I have never seen any approach to feminine dress there, doubtless the desire for it is not wanting and only police regulations relegate it to other occasions and places. You will rightly infer that the police know of these places and endure their existence for a consideration; it is not unusual for the inquiring stranger to be directed there by a policeman."
The Oscar Wilde trial (see ante, p. 48), with its wide publicity, and the fundamental nature of the questions it suggested, appears to have generally contributed to give definiteness and self-consciousness to the manifestations of homosexuality, and to have aroused inverts to take up a definite attitude. I have been assured in several quarters that this is so and that since that case the manifestations of homosexuality have become more pronounced. One correspondent writes:—
"Up to the time of the Oscar Wilde trial I had not known what the condition of the law was. The moral question in itself—its relation to my own life and that of my friends—I reckoned I had solved; but I now had to ask myself how far I was justified in not only breaking the law, but in being the cause of a like breach in others, and others younger than myself. I have never allowed the dictum of the law to interfere with what I deemed to be a moral development in any youth for whom I am responsible. I cannot say that the trial made me alter my course of life, of the rightness of which I was too convincingly persuaded, but it made me much more careful, and it probably sharpened my sense of responsibility for the young. Reviewing the results of the trial as a whole, it doubtless did incalculable harm, and it intensified our national vice of hypocrisy. But I think it also may have done some good in that it made those who, like myself, have thought and experienced deeply in the matter—and these must be no small few—ready to strike a blow, when the time comes, for what we deem to be right, honorable, and clean."
From America a lady writes with reference to the moral position of inverts, though without allusion to the Wilde trial:—