In respect of the offences comprising the second group, the important questions arise, whether there exist any mitigating or aggravating circumstances, such as that the offence was committed against a child, and not against an adult, or that it was committed, not against a stranger, but against one for whose instruction or upbringing the offender was responsible. Is it not desirable that the circumstance that the criminal offence was committed against a child should be stated in the law expressly as a reason for an increase in the severity of the punishment, or else that the law should give children, precisely because they are children, a higher degree of protection against certain offences? Owing to the fact that young people, in consequence of their physical weakness, are much less able than adults to resist aggression, there is every reason for the preferential legal protection of children. The protection should, indeed, be more effective the younger the child. For example, a child of ten can call for help, and can run away, but an infant is utterly defenceless. Punishable offences against children need to be severely punished, because they betray the existence of a coarse and rough disposition in the offender. It must be regarded as an aggravating circumstance when the offender is the person responsible for the child’s upbringing. And yet the criminal offences of parents, guardians, foster-parents, and teachers, against the children under their care, are often nothing more than a misuse in all good faith of the authority entrusted to them. Simply in the interests of the child, severe punishment is often undesirable, because of the rancour against the child it would tend to arouse. (These questions are of importance only so long as the practice continues of passing determinate sentences. The introduction of the indeterminate sentence, which is in line with the tendency of evolution, would render these questions unimportant.)
If any offender whose conduct against a child has proved him to be incapable of exercising with propriety parental authority, the powers of a guardian, the powers of a foster-parent, the duties of a teacher, it is essential to deprive him of these powers without delay; and this should be done, not only in the interests of the particular child, but in the interests of all children. Anyone who has committed a serious punishable offence against a child is, as a rule, altogether unfitted to exercise authority of any kind over any children. If the offender is punished, and thereafter the child is left in his power, the child will usually become the object upon which he will work off the rancour inspired by the punishment. It is essential that this change in the guardianship of the child should not be postponed until the case is decided and judgment is passed, but that it should be effected immediately it is thought necessary to institute proceedings. The objection that the right to remove a child from the care of an offender properly belongs, not to the criminal court, but to the Board of Guardianship, is invalid. The procedures rendered necessary in consequence of the initiation of the criminal proceedings cannot, in these cases, be distributed among various different authorities. In most instances it is essential to act at once. Authority over a child, in a modern State, is not essentially different from an official position. Since our criminal courts are empowered to decree any one’s unfitness to hold an official position, and to deprive any citizen of his civil rights, why should they not also be empowered to decide that certain persons are unfitted to exercise authority over children? The courts have the power to declare that through the loss of civil rights a man has become unfitted for the position of an official guardian; a teacher in a State school loses his position ipso facto if convicted of a criminal offence; why should not the criminal courts have the power to deprive parents, foster-parents, and private teachers of their “office,” and to declare them to be unfitted to hold it?
The great majority of punishable offences against children are committed against children of the lower classes.
Infanticide.—By infanticide we understand the deliberate killing of an illegitimate child by its mother during or immediately after birth. For the following reasons, it is necessary that this offence should not be punished with extreme severity: (a) in the act of parturition the mother’s physical and mental equilibrium is disturbed, so that her condition must be regarded as one of diminished responsibility; (b) in the act of parturition the unmarried mother is influenced by the dread of disgrace, and by fears as to the child’s future, in ways from which the married mother is free; (c) neither the secret and indiscriminate reception of illegitimate children into foundling hospitals, nor the most severe punishments, suffice to prevent the commission of this crime. (In France, for example, infanticide is punished with the greatest possible severity, but this does not prevent the commission of the offence. For, in the first place, since in France inquiry into paternity is forbidden, during parturition the fears of the unmarried mother as to the future of the child are exceptionally distressing. In the second place, since the jury know that the offence will be punished with draconian severity, they prefer to return a verdict of Not Guilty.) We do not find, in every modern State, such an attitude towards infanticide. There are certain countries in which infanticide is even more severely punished than the murder of an adult. In the country, infanticide is comparatively commoner than in towns, this difference being connected with the fact that in the country districts there are no foundling hospitals, and with the fact that in the country criminal abortion is less frequently practised than in the towns.
There are certain children with respect to whom medical science indicates, beyond the possibility of a doubt, that it is impossible for them ever to become useful members of society; indeed, in the case of many of them, it is obvious that their existence is directly harmful to the species—for example, cripples, high-grade cretins, idiots, and children with gross deformities. But at the present day such children are preserved to lead a life of martyrdom. The greatest possible pains and the highest refinements of medical skill are employed to keep them alive. Huge institutions are erected for their care, and there is great rejoicing if, after years of laborious efforts, some of these small unfortunates have been taught to speak or write a few words. This procedure is a grave infringement of the law of parsimony (see the [first paragraph of Chapter V.] in the General Part), if only for the reason that in other departments of social life, with the same expenditure of effort, far greater and more valuable results could be obtained. When such children, for one reason or another, find their way into the world, they should be quickly and painlessly destroyed. What method should be adopted to attain this end is a minor consideration. The most suitable plan would appear to be that, after a thorough expert medical examination, such children should be killed by a swift and painless narcotic. For the present, we may leave the question open whether the consent of the parents should first be obtained. According to the moral conceptions of to-day, not only do people shrink back when such energetic measures are proposed, but every act by which individuals, however worthless, are sacrificed in the interests of the species, is regarded as immoral, and even as a punishable offence. But just as to-day we treat certain individuals whose conduct endangers the present generation in such a way as to deprive them of opportunities for doing further harm, so also should we deal as seems best from the social point of view with those individuals who are useless to society, or may be harmful to future generations. As soon as it is generally understood that the interest of future generations is at least as important as that of the present generation, that the interest of the species is more important than that of a few individuals useless to society, and as soon as the number of cases in which such destruction of children is desirable has been greatly diminished owing to the adoption of appropriate preventive measures, it will be regarded as a necessary and moral act to put an end to these defectives.
Abortion.—Abortion is common in every age. In ancient times, amongst the majority of peoples, it was not considered a punishable offence. Even in Christian Europe, down to the eighteenth century, it was not punished when the act was performed within ten weeks of the occurrence of conception. The explanation of this is that during the earlier stages of development the embryo was not supposed to possess a soul. To-day, abortion is a punishable offence, but is none the less extraordinarily common. Official statistics make no approach to completeness, for the great majority of abortions remain secret. An expert to-day, owing to the gigantic advances in surgical technique, can procure abortion without either difficulty or danger. In every large town there are numerous doctors who specialise as abortionists. Even the midwives do not hesitate to undertake such manipulations. In every populous resort will be found large institutions where women are given an opportunity for concealing the consequences of illicit intercourse by the practice of abortion.
Where conception has occurred in a married woman, it may be fear for the future of the child, of a lowering of the standard of life of the family, or of the act of parturition, which leads to the practice of abortion; where the pregnant woman is unmarried, fears as to the future of mother and child may also be operative, but the principal motives are the dread of disgrace and the desire to conceal the fact that pregnancy has occurred. Among women of the proletariat it will readily be understood that abortion is carried out less skilfully than in the case of women belonging to the well-to-do class, for proletarian women are unable to pay for such highly-skilled assistance. It is for this reason that a much larger proportion of criminal abortions are discovered in the case of proletarian women than in the case of the well-to-do. The number of abortions is comparatively greater in the towns than in the country, and the technique of abortion is a more skilful one in the former districts than in the latter.
It has recently been advocated that abortion should no longer be regarded as a punishable offence. Others are satisfied with the proposal that the mother should be left unpunished. These proposals are supported by the following arguments. The existing law is altogether inefficient, for it attacks not the act in itself, but merely the poverty of the doer and the clumsiness of the act. The punishment of abortion is especially unjust: (a) when the act of intercourse has been effected against the will of the woman who has been impregnated—for example, in case of rape; (b) when abortion is indicated on special grounds of health—for example, when the health or life of the mother is seriously threatened by pregnancy or parturition, and there is no doubt that the life of the mother is more valuable than that of the child; (c) when there is no doubt that the child, if born at full term, would be weakly, diseased, useless, or even injurious to society—for example, when a person suffering from severe insanity or chronic alcoholism impregnates a woman, or when an insane, epileptic, or imbecile woman becomes pregnant. (As to certain other arguments which are put forward, such as that everyone has a perfect right to the disposal of his own body, and that for this reason the prospective mother can deal with the fruit of her womb precisely as she pleases; or that, according to the biogenetic law, the embryo is not a human being, but a lower animal—no importance need be attached to them. They are altogether superfluous.)
As yet there is no country in which these views have been incorporated in legislation, but the time cannot be far distant in which this will take place. Of course, when this happens, abortion, if effected by a married woman, without sufficient cause, and without the consent of her husband, would have to be regarded as an adequate ground for divorce.
The Protection of Feminine Chastity.—The criminal laws of to-day recognise only the more serious offences against the chastity of women, such as rape, seduction, gross instances of procurement, and so on. The aims at reform in this connection are as follows. Feminine chastity, above all as far as young girls are concerned, demands much more effective protection than it receives to-day. The age of consent—that is, the age below which intercourse with a woman is in any case a punishable offence—should be raised at least to eighteen, since protection is needed, not merely for the age of bodily immaturity, but also for the period of the puberal development, the dangerous time during which the sexual impulse is awakening. Not only those should be punished who have effected intercourse with a woman by force or under stress of threats, but also those who have effected intercourse by fraudulent means, by promise of marriage, or by taking advantage of the woman’s dependent position (as in the case of employer and female employee or master and maid-servant). Procurement, in the legislation of most countries, receives a ridiculously mild punishment; and in order to restrict the growth of the white-slave traffic, which, as previously pointed out, has now attained colossal dimensions, it is essential that any one who procures a child for sexual purposes should be punished very severely. Those also should be punished who perform improper acts in the presence of an immature person, or who show such a person obscene pictures, or tell obscene stories, or the like. Boys, on account of their sexual inexperience, need the protection of the criminal law no less than girls.