In addition to the study of the stigmata of degeneration, the study of tattooing is of forensic importance in the consideration of the sexual offences; the character and the date of the tattooing give sometimes interesting information regarding the nature of the personality.
Thus Lombroso[677] reports the case of an offender against morality, fifty years of age, with prominent ears and scanty growth of hair. This man ravished a girl of fifteen, whose mother was his mistress. At the early age of fifteen he had had the most obscene pictures tattooed upon his body; and upon inquiry he stated that he had begun to masturbate at the age of thirteen years, and had begun to have intercourse with women at the age of fifteen years. He denied the accusation of rape, and maintained that he had enjoyed the girl without using force. His tattooing, however, gave evidence of his capacity to commit sexual crime. The pictures served as a certain and important proof of this.
This appeared even more clearly in the case of the ravisher Francesco Spiteri, published by Dr. F. Santangelo in 1892, whose utterly immoral and sexually perverse mode of life was most wonderfully displayed and recorded by means of the tattooings by which his entire body was covered. It will suffice here to allude to the drawing of a fish and of seven points upon his membrum. This indicated that his penis (Italian, pesce = fish) since his youth had pædicated seven boys (= seven points)!
In the case of sexual offences we have to consider, in addition to the question of degeneration, that of diminished or entirely absent responsibility. In cases of unmistakable mental disorder, responsibility does not exist, nor in epileptic confusional states, nor in profound alcoholic intoxication.[678] Between complete irresponsibility and complete responsibility there are numerous transitional stages, which are all classified under the idea of diminished responsibility. This fact is not recognized by § 51 of the Criminal Code, which runs as follows:
“A punishable offence has not been committed when the accused at the time the action was performed was in a state of unconsciousness, or in a state or morbid disturbance of mental activity, by means of which his freedom of will was excluded.”
In this we find the idea of “morbid disturbance of mental activity,” which is definitely wider than the idea of mental disease, in so far as it embraces transient mental disorders in persons who are not suffering from definite mental disease; but it does not take into consideration the even more important notion of diminished responsibility, which is applicable to all the above described borderland states and transitional conditions lying between mental health and mental disease. Häussler (op. cit., p. 39) as long as eighty years ago demanded the recognition of the idea of diminished responsibility—that is, of a condition “in which responsibility for the action was diminished by an imperfectly developed intelligence, without the disturbance of intellectual activity being sufficiently great completely to abolish free voluntary determination” (Aschaffenburg). Since that time, by the address given on September 16, 1887, to the Association of German Alienists at Frankfort on “diminished responsibility,” Jolly opened a discussion upon this question. In this discussion the majority of German psychiatrists recommended the legislative recognition of such an idea, among these Wollenberg, Hoche, Cramer, Kirn, Aschaffenburg, von Schrenck-Notzing, etc.[679]
In connexion with diminished responsibility we must distinguish between individuals and actions. Among the individuals recognized above as persons “psychopathically below par,” responsibility may be diminished permanently and for a number of different actions; but in other cases healthy normal individuals may exhibit diminished responsibility in respect of isolated actions, when, for example, an excessively strong emotion, or a state of acute intoxication, has for a certain time and in relation to a particular action abrogated responsibility. In this connexion, in addition to acute alcoholic intoxication, certain sexual processes have especially to be considered. Häussler recognized the influence of the sexual impulse upon responsibility, and considered that certain actions performed under the influence of that impulse were performed without complete responsibility, and he declared that the voluptuary was a person whose mental health was imperfect.[680] Forel[681] also regarded the “slaves of the sexual impulse” as mentally abnormal, as individuals whose responsibility was diminished. I consider it indisputable that sexual emotions, especially when they arise suddenly, diminish responsibility, and limit, to some extent at least, the freedom of voluntary determination. Regarding certain processes of the vita sexualis, such as the epoch of puberty in both sexes, regarding menstruation, pregnancy, and the climacteric in women, this fact has been already generally recognized. It ought, however, to be admitted regarding the sexual impulse in general, more especially when the whole character of the action proves that it has been the consequence of a suddenly arising powerful emotion. Von Krafft-Ebing also is of this opinion.[682] It is, moreover, in most cases possible to determine whether the offence was caused only by a powerful sexual emotion, by means of which the intelligence and the freedom of the will of a person, in other respects normally responsible, were temporarily limited or completely arrested; or whether other motives intervened, so that the action must be regarded as the result of conscious choice.
In conclusion, another point must be considered, which is related to the question of sexual offences committed with children, and which possesses forensic importance. This is the circumstance that in many such cases there is no question of the “seduction” of children, but that, on the contrary, the incitation first proceeded from the children themselves. In the previous chapter we discussed the early appearance of sexual activity in children. Moreover, in such cases we could distinguish between a nobler and a grosser, more sensual love.
As an example of the former, I may allude to the ardent, affectionate love of a girl of twelve for a thoroughly honourable man of forty years of age, who certainly had no idea of sexual intimacy with the child, and who was unable to free himself from her passionate caresses. We often observe such intimate inclinations on the part of young girls towards mature men, and we must be careful in such cases to avoid immediately thinking of pædophilic unchastity.
In another case a mother complained that her daughter, seven years of age, was in continual pursuit of a boy of fourteen, and could not be cured of the affection.