The following case seems to be devoid of a psychopathic basis:—
Case 191. Sodomy.—In a provincial town a man was caught in intercourse with a hen. He was thirty years old, and of high social position. The chickens had been dying one after another, and the man causing it had been searched for a long time. To the question of the judge, as to the reason for such an act, the accused said that his genitals were so small that coitus with women was impossible. Medical examination showed that the genitals were actually extremely small. The man was mentally entirely sound.
There were no statements concerning any abnormalities at the time of puberty, etc. (Gyurkovechky, “Männl. Impotenz,” 1889, p. 82.)
(b) With Persons of the Same Sex—Pederasty; Sodomy in its Strict Sense.
German law takes cognizance of unnatural sexual relations only between men; Austrian, between those of the same sex; and, therefore, unnatural relations between women are punishable.
Among the immoralities between men, pederasty (immissio penis in anum) claims the principal interest. Indeed, the jurist thought only of this perversity of sexual activity; and, according to the opinions of distinguished interpreters of the law (Oppenhoff, “Stgsb.,” Berlin, 1872, p. 324, and Rudolf and Stenglein, “D. Strafgesb. f. d. Deutsche Reich,” 1881, p. 423), immissio penis in corpus vivum belongs to the criminal act covered by § 175.
According to this interpretation, legal punishment would not follow other improper acts between male persons, so long as they were not complicated with offense to public decency, with force, or undertaken with boys under the age of fourteen. Of late this interpretation has again been abandoned, and the crime of unnatural abuse between men has been assumed when merely acts similar to cohabitation were performed.[[142]]
The study of contrary sexual instinct has placed male love of males in a very different light from that in which it, and particularly pederasty, stood at the time the statutes were framed. The fact that there is no doubt about the pathological basis of many cases of contrary sexual instinct shows that pederasty may also be the act of an irresponsible person, and makes it necessary, in court, to examine not merely the deed, but also the mental condition of the perpetrator.
The principles laid down previously must also be adhered to here. Not the deed, but only an anthropological and clinical judgment of the perpetrator can permit a decision as to whether we have to do with a perversity deserving punishment, or with an abnormal perversion of the mental and sexual life, which, under certain circumstances, excludes punishment. The next legal question to settle is whether the contrary sexual feeling is congenital or acquired; and, in the latter case, whether it is abnormal perversion or moral perversity.
Congenital contrary sexual instinct occurs only in predisposed (tainted) individuals, as a partial manifestation of a defect evidenced by anatomical or functional abnormalities, or both. The case becomes clearer, and the diagnosis more certain, if the individual, in character and disposition, seems to correspond entirely with his sexual peculiarity; and if the inclination toward persons of the opposite sex is entirely wanting, and horror of sexual intercourse with them is felt; and if the individual, in the impulses to satisfy the contrary sexual instinct, shows other anomalies of the sexual sphere, such as more pronounced degeneration in the form of periodicity of the impulse and impulsive conduct, and is a neuropathic and psychopathic person.