The principle of the compulsory notification of venereal diseases seems to have been first established in Prussia, where it dates from 1835. The system here, however, is only partial, not being obligatory in all cases but only when in the doctor's opinion secrecy might be harmful to the patient himself or to the community; it is only obligatory when the patient is a soldier. This method of notification is indeed on a wrong basis, it is not part of a comprehensive sanitary system but merely an auxiliary to police methods of dealing with prostitution. According to the Scandinavian system, notification, though not an essential part of this system, rests on an entirely different basis.
The Scandinavian plan in a modified form has lately been established in Denmark. This little country, so closely adjoining Germany, for some time followed in this matter the example of its great neighbor and adopted the police regulation of prostitution and venereal disease. The more fundamental Scandinavian affinities of Denmark were, however, eventually asserted, and in 1906, the system of regulation was entirely abandoned and Denmark resolved to rely on thorough and systematic application of the sanitary principle already accepted in the country, although something of German influence still persists in the strict regulation of the streets and the penalties imposed upon brothel-keepers, leaving prostitution itself free. The decisive feature of the present system is, however, that the sanitary authorities are now exclusively medical. Everyone, whatever his social or financial position, is entitled to the free treatment of venereal disease. Whether he avails himself of it or not, he is in any case bound to undergo treatment. Every diseased person is thus, so far as it can be achieved, in a doctor's hands. All doctors have their instructions in regard to such cases, they have not only to inform their patients that they cannot marry so long as risks of infection are estimated to be present, but that they are liable for the expenses of treatment, as well as the dangers suffered, by any persons whom they may infect. Although it has not been possible to make the system at every point thoroughly operative, its general success is indicated by the entire reliance now placed on it, and the abandonment of the police regulation of prostitution. A system very similar to that of Denmark was established some years previously in Norway. The principle of the treatment of venereal disease at the public expense exists also in Sweden as well as in Finland, where treatment is compulsory.[[243]]
It can scarcely be said that the principle of notification has yet been properly applied on a large scale to venereal diseases. But it is constantly becoming more widely advocated, more especially in England and the United States,[[244]] where national temperament and political traditions render the system of the police regulation of prostitution impossible—even if it were more effective than it practically is—and where the system of dealing with venereal disease on the basis of public health has to be recognized as not only the best but the only possible system.[[245]]
In association with this, it is necessary, as is also becoming ever more widely recognized, that there should be the most ample facilities for the gratuitous treatment of venereal diseases; the general establishment of free dispensaries, open in the evenings, is especially necessary, for many can only seek advice and help at this time. It is largely to the systematic introduction of facilities for gratuitous treatment that the enormous reduction in venereal disease in Sweden, Norway, and Bosnia is attributed. It is the absence of the facilities for treatment, the implied feeling that the victims of venereal disease are not sufferers but merely offenders not entitled to care, that has in the past operated so disastrously in artificially promoting the dissemination of preventable diseases which might be brought under control.
If we dispense with the paternal methods of police regulation, if we rely on the general principles of medical hygiene, and for the rest allow the responsibility for his own good or bad actions to rest on the individual himself, there is a further step, already fully recognized in principle, which we cannot neglect to take: We must look on every person as accountable for the venereal diseases he transmits. So long as we refuse to recognize venereal diseases as on the same level as other infectious diseases, and so long as we offer no full and fair facilities for their treatment, it is unjust to bring the individual to account for spreading them. But if we publicly recognize the danger of infectious venereal diseases, and if we leave freedom to the individual, we must inevitably declare, with Duclaux, that every man or woman must be held responsible for the diseases he or she communicates.
According to the Oldenburg Code of 1814 it was a punishable offence for a venereally diseased person to have sexual intercourse with a healthy person, whether or not infection resulted. In Germany to-day, however, there is no law of this kind, although eminent German legal authorities, notably Von Liszt, are of opinion that a paragraph should be added to the Code declaring that sexual intercourse on the part of a person who knows that he is diseased should be punishable by imprisonment for a period not exceeding two years, the law not to be applied as between married couples except on the application of one of the parties. At the present time in Germany the transmission of venereal disease is only punishable as a special case of the infliction of bodily injury.[[246]] In this matter Germany is behind most of the Scandinavian countries where individual responsibility for venereal infection is well recognized and actively enforced.
In France, though the law is not definite and satisfactory, actions for the transmission of syphilis are successfully brought before the courts. Opinion seems to be more decisively in favor of punishment for this offense than it is in Germany. In 1883 Després discussed the matter and considered the objections. Few may avail themselves of the law, he remarks, but all would be rendered more cautious by the fear of infringing it; while the difficulties of tracing and proving infection are not greater, he points out, than those of tracing and proving paternity in the case of illegitimate children. Després would punish with imprisonment for not more than two years any person, knowing himself to be diseased, who transmitted a venereal disease, and would merely fine those who communicated the contagion by imprudence, not realizing that they were diseased.[[247]] The question has more recently been discussed by Aurientis in a Paris thesis. He states that the present French law as regards the transmission of sexual diseases is not clearly established and is difficult to act upon, but it is certainly just that those who have been contaminated and injured in this way should easily be able to obtain reparation. Although it is admitted in principle that the communication of syphilis is an offence even under common law he is in agreement with those who would treat it as a special offence, making a new and more practical law.[[248]] Heavy damages are even at the present time obtained in the French courts from men who have infected young women in sexual intercourse, and also from the doctors as well as the mothers of syphilitic infants who have infected the foster-mothers they were entrusted to. Although the French Penal Code forbids in general the disclosure of professional secrets, it is the duty of the medical practitioner to warn the foster-mother in such a case of the danger she is incurring, but without naming the disease; if he neglects to give this warning he may be held liable.
In England, as well as in the United States, the law is more unsatisfactory and more helpless, in relation to this class of offences, than it is in France. The mischievous and barbarous notion, already dealt with, according to which venereal disease is the result of illicit intercourse and should be tolerated as a just visitation of God, seems still to flourish in these countries with fatal persistency. In England the communication of venereal disease by illicit intercourse is not an actionable wrong if the act of intercourse has been voluntary, even although there has been wilful and intentional concealment of the disease. Ex turpi causâ non oritur actio, it is sententiously said; for there is much dormitative virtue in a Latin maxim. No legal offence has still been committed if a husband contaminates his wife, or a wife her husband.[[249]] The "freedom" enjoyed in this matter by England and the United States is well illustrated by an American case quoted by Dr. Isidore Dyer, of New Orleans, in his report to the Brussels Conference on the Prevention of Venereal Diseases, in 1899: "A patient with primary syphilis refused even charitable treatment and carried a book wherein she kept the number of men she had inoculated. When I first saw her she declared the number had reached two hundred and nineteen and that she would not be treated until she had had revenge on five hundred men." In a community where the most elementary rules of justice prevailed facilities would exist to enable this woman to obtain damages from the man who had injured her or even to secure his conviction to a term of imprisonment. In obtaining some indemnity for the wrong done her, and securing the "revenge" she craved, she would at the same time have conferred a benefit on society. She is shut out from any action against the one person who injured her; but as a sort of compensation she is allowed to become a radiating focus of disease, to shorten many lives, to cause many deaths, to pile up incalculable damages; and in so doing she is to-day perfectly within her legal rights. A community which encourages this state of things is not only immoral but stupid.
There seems, however, to be a growing body of influential opinion, both in England and in the United States, in favor of making the transmission of venereal disease an offence punishable by heavy fine or by imprisonment.[[250]] In any enactment no stress should be put on the infection being conveyed "knowingly." Any formal limitation of this kind is unnecessary, as in such a case the Court always takes into account the offender's ignorance or mere negligence, and it is mischievous because it tends to render an enactment ineffective and to put a premium on ignorance; the husbands who infect their wives with gonorrhœa immediately after marriage have usually done so from ignorance, and it should be at least necessary for them to prove that they have been fortified in their ignorance by medical advice. It is sometimes said that the existing law could be utilized for bringing actions of this kind, and that no greater facilities should be offered for fear of increasing attempts at blackmail. The inutility of the law at present for this purpose is shown by the fact that it seldom or never happens that any attempt is made to utilize it, while not only are there a number of existing punishable offences which form the subject of attempts at blackmail, but blackmail can still be demanded even in regard to disreputable actions that are not legally punishable at all. Moreover, the attempt to levy blackmail is itself an offence always sternly dealt with in the courts.