[135]. Masochism may, under certain circumstances, attain forensic importance. Modern criminal law no longer recognizes the principle, “volenti non fit injuria”; and the present Austrian statute, in § 4, says expressly: “Crimes may also be committed on persons who demand their commission on themselves.”
As Herbst (Handb. d. österr. Strafrechts., Wien, 1878, p. 72) remarks, there are, nevertheless, crimes conditioned by the absence of assent on the part of the injured individual, which cease to be such as soon as the injured individual has given consent,—e.g., theft, rape.
But Herbst also enumerates here the limitation of personal freedom (?).
Of late a decided change of views on this point has taken place. The German criminal law regards the consent of a man to his own death of such importance that a very different and much milder punishment is inflicted under such circumstances (§ 216); and it is the same in Austrian law (Austrian Abridgment, § 222). The so-called double suicide of lovers was the act considered. In bodily injury and deprivation of freedom, the consent of the victim must also receive consideration at the hands of the judge. Certainly a knowledge of masochism is of importance in making a judgment of the probability of asserted consent.
[136]. According to Austrian law, this crime should fall under § 411, as slight bodily injury; according to the German criminal law, it is bodily injury (comp. Liszt, p. 325).
[137]. Cases, vide Friedreich’s Blätter f. ger. Anthropologie, iii, p. 77.
[138]. Cases, Maschka, Handb., iii, p. 175.—Casper, Vierteljahrsschr., 1852, Bd. i.—Tardieu, Attentats.
[139]. Comp. Kirn, Allg. Zeitschr. f. Psych., 39, p. 217.
[140]. I follow the usual terminology in describing bestiality and pederasty under the general term sodomy. In Genesis (chap. xix), whence this word comes, it signifies exclusively the vice of pederasty. Later, sodomy was often used synonymously with bestiality. The moral theologians, like St. Alphons of Liguori, Gury, and others, have always distinguished correctly, i.e., in the sense of Genesis, between sodomia, i.e., concubitus cum persona ejusdem sexus, and bestialitas, i.e., concubitus cum bestia (comp. Olfus, Pastoralmedicin, p. 78).
The jurists brought confusion into the terminology by establishing a “Sodomia ratione sexus” and a “S. ratione generis.” Science, however, should assert itself as ansilla theologiæ, and return to the correct usage.