Maria Lischnewska reports (“Mutterschutz,” 1905, p. 155) the case of a boy, not yet six years of age, who drew up the nightgown of his foster-mother, and endeavoured to have intercourse with her.
The sexual offences committed by clergymen and tutors upon the girls taught by them are apt to be seen in a different light when we subject the youthful accuser to a strict cross-examination, and, in addition, to a physical examination, whereby in many cases we bring to light the fact that, long before the recent offence, they have been accustomed of their own free will to have sexual relations with other men. Casper long ago drew attention to these circumstances. Very often from the pupil herself proceed actual advances of the worst kind, which have proved ruinous to many a young teacher whose morals were previously above reproach.
Finally, there is an important point which must not be forgotten: the untrustworthy character of childish evidence, a matter which has recently been discussed by the specialist Adolf Baginsky.[683] This writer, whose knowledge of childish psychology is so profound, remarks:
“The evidence given by children in the law-courts appears to those who are really familiar with the child mind to be absolutely worthless and utterly devoid of importance, and this is the more the case the more frequently the child repeats its statement, and the more firmly it sticks to its evidence.”
He alludes to the law of Sweden, according to which the child is not competent to give evidence in a law-court before the completion of its fifteenth year.
All these circumstances must be considered in relation to the question of the so-called “age of consent.” M. Hirschfeld justly remarks that the natural age of consent is equivalent to that at which a child is competent to make a choice (“The Nature of Love,” p. 284). I consider that the decision of the Italian Criminal Code is the best; by this Code the age of consent for both sexes is placed at the conclusion of the sixteenth year.
The majority of crimes committed from purely sexual motives belong to the crimes of passion, in the sense of Ferris, and indeed to crimes committed under the coercion of the most powerful of organic impulses. I doubt whether the existing punishments are the most suitable for the purpose for which they are designed. In any case, gentleness is here above all demanded, and we should invoke the saying, “Judge not, that ye be not judged!” Indeed, an evangelical minister[684] speaks truly when he says:
“The enormous majority of men and women, who constitute themselves the judges of offences against morality, whilst they themselves take every opportunity of infringing the moral laws they profess to uphold—lie day after day, throughout their whole life—their position is built upon hypocrisy and lies.”
It very rarely happens that a judge who condemns a thief or a murderer has himself been guilty of this crime, but without doubt it frequently happens that a judge condemns other men on account of sexual offences which he has himself committed. In the case of sexual crimes we almost always have to do with individuals to whom more good could be done by medical influence than by imprisonment; we must entrust the physician with the duty of protecting society against such offenders. “In this province, physicians will become the judges of the future,” says M. Hirschfeld most justly.[685] Until this end is attained, let us remind German judges of an anecdote which I found in an old French encyclopædia:[686]
“A courtesan in Madrid killed her lover, on account of his unfaithfulness; she was condemned and brought before the king, from whom she hid nothing. The king said to her: ‘Thou hast loved too much to be a reasonable being.’”