1. Unnatural vice between men is punished, whereas that between women is left impune. But why should this latter be the case, if we adopt the standpoint (which we have, indeed, seen to be untenable) that homosexual intercourse is in itself vicious and criminal—why should homosexual intercourse between women be less vicious and criminal than homosexual intercourse between men?
2. The idea “unnatural vice” is equally absurd and inconsequent, and makes justice in respect of these offences absolutely impossible. By this term is understood not merely pædication (immissio membri in anum), but also any kind of intercourse between men “resembling sexual intercourse”—that is, coitus in os, coitus inter femora, even simple frictio membri—whilst mutual masturbation and other perverse practices are not punishable.
3. § 175 does not safeguard any citizen,[553] for the sexual freedom of the individual is not disturbed in any way by the intercourse between two adult men who fully understand what they are doing, nor is the general moral sense injured in any way if the act is not seen by any third person. In this latter respect, however, § 183 of the Criminal Code, which punishes annoyance to the public by improper conduct, already affords sufficient protection.
4. If § 175 is maintained with especial reference to the existence of professional male unchastity, von Liszt has rightly replied to this contention that the latter form of unchastity can be rendered harmless by a modified reading of § 361b of the Criminal Code, just as the protection of virtue can be safeguarded by other sections of the Code.
5. The effectiveness of § 175 is extremely limited. According to Hirschfeld (“Annual for Sexual Intermediate Stages,” vol. vi., p. 175), no more than 0·007 % of the existing punishable homosexual practices of the present day are detected and punished. Therefore a few isolated individuals are punished for an offence which thousands of others commit with impunity.
6. When § 175 of the Criminal Code was drawn up, the law-givers knew absolutely nothing about the homosexual impulse as an essential outcome of the personality; they merely wished to punish heterosexuals who committed homosexual practices, not to punish genuine homosexuals (cf. Numa Prætorius, “The Question of the Responsibility of Homosexuals,” published in the Monthly Review of Criminal Psychology, edited by G. Aschaffenburg, 1906, p. 561).
The worst and most tragic consequence of § 175 is the permanent infamy and social contempt suffered by persons who, without any blame to themselves, have a mode of sexual perception diverging from that of the great majority. The state itself commits a crime when it enrols in the category of vice and crime a biological phenomenon which has recently been recognized as such even by the Evangelical and Catholic Churches,[554] and has been freed by these Churches from the stigma of immorality. The continuance of this great injustice is the frequent cause of the suicide of homosexuals, especially of such as are men of exceptional spiritual and moral cultivation, and frequently before they have actually indulged in their homosexual impulse, the best proof that we have to do, not with vicious, but with unhappy men, who are unable to bear the misery of being socially despised and unjustly misunderstood by their associates. How many suicides from homosexual grounds occur it is impossible to establish exactly. We can only suspect the cause from certain attendant circumstances. A highly respected literary man writes to me regarding this question of the suicide of homosexuals: “When a fine young fellow, suffering frightfully as a result of his inherited disposition, shoots himself, his family will rather suggest that the cause was a chancre (which he has never had), than they will admit his homosexuality.” Several such cases have come under his notice. “A better cause,” he suggests, “for the suicide would have been unhappy love, for that is the actual truth.” Zola,[555] speaking of the letters of a homosexual, says that they exhibited “the most heart-breaking cry of human agony” that he had ever known.
“He earnestly resisted yielding to such shameful, lustful love, and he longed to know whence came this contempt of all men, whence this continuous readiness of the law-courts to crush him down, when in his flesh and blood were inborn a disgust towards woman, whilst he had brought into the world with him a true feeling of love towards man. Never had one possessed by a demon, never had a poor human body given up to and tortured by the unknown powers of the sexual impulse, so painfully expressed his misery. Have we not here a truly physiological case definitely displayed before our eyes—an inversion, an error, on the part of Nature? Nothing, in my opinion, is more tragical, and nothing demands more urgently investigation and a means of cure, if such can possibly be found.”
The complete enlightenment of the people would give rise to a spontaneous change in their conception of homosexuality, to which, moreover, the greater number of homosexuals belonging to the better classes could contribute, if they would freely and openly admit their tendencies. The secrecy and hypocrisy of many urnings is partly responsible for the hitherto prevailing false views on homosexuality. We cannot spare them this reproach.
Finally, § 175 is not merely an injustice to homosexuals, but it is also a danger to heterosexuals, in consequence of the blackmail which is so intimately associated with the existence of this section. It is not enough that these criminals of the most debased kind, who to a small extent only are recruited from the ranks of male prostitutes, reduce numerous unhappy urnings to social and financial ruin, and drive many others to suicide or to crime, of which the remarkable case of a County Court Judge a few years ago afforded a typical example. These wretches also dare with ever-greater success to make use of § 175 for the purpose of blackmailing completely normal heterosexuals. In fact, they often succeed better with these latter than they do with homosexuals, because to the normal man the idea of being regarded as homosexual is so repulsive.