The laws of all civilized nations punish those who commit perverse sexual acts. Inasmuch as the preservation of chastity and morals is one of the most important reasons for the existence of the commonwealth, the state cannot be too careful, as a protector of morality, in the struggle against sensuality. This contest is unequal; because only a certain number of the sexual crimes can be legally combated, and the infractions of the laws by so powerful a natural instinct can be but little influenced by punishment. It also lies in the nature of the sexual crimes, that but a part of them ever reach the knowledge of the authorities. Public sentiment, in that it looks upon them as disgraceful, lends much aid.
Criminal statistics prove the sad fact that sexual crimes are progressively increasing in our modern civilization.[[127]] This is particularly the case with immoral acts with children under the age of fourteen. The moralist sees in these sad facts nothing but the decay of general morality, and in some instances comes to the conclusion that the present mildness of the laws punishing sexual crimes, in comparison with their severity in past centuries, is in part responsible for this.
The medical investigator is driven to the conclusion that this manifestation of modern social life stands in relation to the predominating nervousness of later generations, in that it begets defective individuals, excites the sexual instinct, leads to sexual abuse, and, with continuance of lasciviousness associated with diminished sexual power, induces perverse sexual acts.
It will be clearly seen, from what follows, how such an opinion is justified, especially with respect of the increasing number of sexual crimes committed on children. It is at once evident, from what has gone before, that neuropathic, and even psychopathic, states are largely determinate for the commission of sexual crimes. Here nothing less than the responsibility of many of the men who commit such crimes is called in question.
Psychiatry cannot be denied the credit of having recognized and proved the psycho-pathological significance of numerous monstrous, paradoxical sexual acts. Law and Jurisprudence have thus far given but little attention to the facts resulting from investigations in psychopathology. Law is, in this, opposed to Medicine, and is constantly in danger of passing judgment on individuals who, in the light of science, are not responsible for their acts.
Owing to this superficial treatment of acts that deeply concern the interests and welfare of society, it becomes very easy for justice to treat a delinquent, who is as dangerous to society as a murderer or a wild beast, as a criminal, and, after punishment, release him to prey on society again; on the other hand, scientific investigation shows that a man mentally and sexually degenerate ab origine, and therefore irresponsible, must be removed from society for life, but not as a punishment.
A judge who considers only the crime, and not its perpetrator, is always in danger of injuring not only important interests of society (general morality and safety), but also those of the individual (honor).
In no domain of criminal law is co-operation of judge and medical expert so much to be desired as in that of sexual delinquencies; and here only anthropological and clinical investigation can afford light and knowledge. The nature of the act can never, in itself, determine a decision as to whether it lies within the limits of mental pathology, or within the bounds of mental physiology. The perverse act does not indicate perversion of instinct. At any rate, the most monstrous and perverse sexual acts have been committed by persons of sound mind. The perversion of feeling must be shown to be pathological. This proof is to be obtained by learning the conditions attending its development, and by proving the existence of a general neuropathic or psychopathic condition.
The species facti is important; but it allows, however, only presumptions, since the same sexual act, according as it is committed by an epileptic, paralytic, or a man of sound mind, takes on other features and peculiarities, in accordance with the manner in which it is done.
Periodical recurrence of the act under identical circumstances, and an impulsive manner in carrying it out, give rise to weighty presumptions that it is of pathological significance. The decision, however, must follow after referring the act to its psychological motive (abnormalities of thought and feeling), and after showing this elementary anomaly to be but one symptom of a general neuropathic condition,—either an arrest of mental development, or a condition of psychical degeneration, or a psychosis.