The question of kissing by main force can be treated not only from an ethical, but also from a juristic point of view. Holberg relates that in Naples the individual who kissed in the street a woman against her will was punished by not being allowed to approach within thirty miles distance of the spot where the outrage had taken place; and a German jurist wrote in the end of the eighteenth century, a minute and extremely solid treatise on the remedy that a woman has against a man who kisses her against her will (Von dem Rechte des Frauenzimmers gegen eine Mannperson, die es wider seinen Willen küsset). The author begins by classifying kisses; he distinguishes between lawful and unlawful kisses, and frames the following classification:—
Kisses are either
- I.—Lawful,
- A. As spiritual kisses.
- B. As kisses of reconciliation and kisses of peace.
- C. As customary kisses; partly,
- a. By way of salutation.
- 1. At meeting.
- 2. On arrival.
- 3. At departure; partly,
- b. As mark of courtesy.
- c. In jest.
- a. By way of salutation.
- D. As kisses of respect.
- E. As kisses on festive occasions.
- F. As kisses of love:
- II.—Unlawful, when they are given—
- A. Out of treachery or malice.
- B. Out of lust.
After this particularly happy attempt to reduce kissing to a system, our jurist maintains the view that all depends on the person who kisses and the person who is kissed.
If, for instance, a peasant or a vulgar citizen takes such a liberty as to kiss a noble and high-born lady against her will, her claim against the aggressor ought to be far greater than it would be in the case of one of less ignoble descent; but, on the other hand, if Hans steals from his Greta “an informal, hearty, rustic kiss,” and she complains to the authorities about it, there will scarcely be any grounds for litigation.
On the whole, says he, a kiss between individuals of the same position in society is not to be regarded as a tort, and he more closely defines how he arrives at this conception. It can only be actionable in the case of a party having some consciously unchaste intention when he kissed, or in the case of an osculum luxuriosum or libidinosum—in such cases only can a verdict be brought in of what, according to Roman law, is termed crimen osculationis, and in no other case can the wrong-doer be punished by fine or imprisonment, propter voluntatem perniciosæ libidinis. The punishment, however, should be proportioned in severity according to the rank of the injured party. In the case of a nun or a married woman it ought to be most severe; less severe if the lady be unmarried but betrothed, and mildest when she is neither married nor betrothed.
But if the unchaste intention cannot be distinctly proved, the woman has no grounds for complaining of any sort, and, in accordance with the procedure of the German courts, the kiss is to be considered innocent till the contrary is proved.
Our jurist thus takes a really liberal view in the case of a “kiss taken by force”; he may almost be said to regard it as eine grosse Kleinigkeit (an unimportant trifle).
With regard to the question of a woman’s right to defend herself in such cases, he is of opinion that she is justified in repulsing the insulter by a box on the ears, but only if the offence amounts to crimen osculationis, and this box on the ears may not be inflicted with “the fist of an Amazon,” as, by such requital, she easily loses her right to take legal action in the matter. She must, above all, be careful that the box on the ears be not excessive (die Ohrfeige proportionirlich einzukleiden), as otherwise the man can bring an action against her; consequently the woman ought to use her right of self-defence with great caution.
Our jurist concludes with considerations of cases when the woman who has been kissed forfeits all claims, viz., when, for instance, by look or gestures she says, “I should like to see the man who would dare to kiss me,” and, by such conduct, obviously exposes herself to the danger.