Richard von Krafft-Ebing, Der Conträrsexuale vor dem Strafrichter,
2nd augmented edition, Leipzig and Vienna: Franz Deuticke, 1895, pp. 3-21.
The citizen's right of free expression becomes a moral duty if he is able, due to special knowledge and experience gained as a result of his profession, to contribute to the setting aside of errors that are likely to harm the public good.
After decades of research into the psychopathology of human sexual life, the author of the following treatise, in conjunction with researchers of the most varied countries, has come to the joint scientific result that that which was earlier viewed as a vice, with regard to sodomia ratione sexus [sodomy by reason of gender], is usually a blameless defect and that the justice system acts unjustly, even cruelly, by prosecuting and punishing unfortunate fellow human beings when the latter follow a diseased natural drive oriented toward gratification with their own sex.
While in 1867 the imperial Austrian government, taking into account the knowledge gained through science, intended to discontinue future prosecution of sodomia ratione sexus, the current government along with the criminal code commission is inclined to adopt § 129 of the current legal code into the future code essentially without modification.
This would be a misfortune, because the paragraph originates in mistaken premises, is incompatible with the knowledge gained from scientific research, has caused much harm, and has driven useful and blameless citizens into disgrace, hardship, and death, without creating any significant benefit.
In the interest of truth, justice, and humanity, and not only as a representative of scientific research, but also as a doctor who has seen unspeakable and unjustified human misery, the author could do nothing else but to express his misgivings about the planned legal proposition and to seek an alternative by which the public good might be fulfilled.
To the extent that it was necessary in this project to enter the territory of the law, where he is only a lay person, he trusts that he can rely on the forbearing of experts. In any case, he may hope that all those who are empowered with the weighty and responsible decision concerning the wording of the future Austrian criminal code will find his small document, which is written with the best of motivations, worthy of their attention.
One of the greatest French anthropologists and psychiatrists of France, Morel, expressed the following beautiful thought in his "Traité des maladies mentales," p. 544, published decades ago: "I do not doubt for a moment that the laws that regulate punishment among all civilized peoples are destined one day to undergo modifications, the credit for which will accrue to physicians, who will have learned to know better the numerous modifications which heredity imprints on the organism."
The present debate is a concrete example proving the correctness of this statement. May it be settled in the spirit of advanced science and for the good of the state, and so that the word of this great scholar is fulfilled!
Vienna, March 1894.
In our modern, neurotic, and in many respects organically polluted society, there exists not a small proportion of fellow human beings who, due to a degenerative constitution, show a deviation from the natural heterosexual orientation of the sexual feelings and drives, a deviation that is totally incomprehensible to the normally constituted human being and that infuses a normal person with horror.
That is, they feel sexually attracted to persons of their own sex and revolted by those of the other sex.
That which appears unnatural about homosexual gratification in the eyes of the normally-inclined, because normally-organized person, appears to them as natural, healthy, and proper.
Aside from the false premise, their sexual life develops and is carried out psychologically and physically just as for the normal human being, the heterosexual.
It is not enough that an unfortunate perverse natural constitution robs these contrary-sexuals or homosexuals of great benefits of earthly existence in the form of matrimonial and family bliss, the prejudiced traditional opinion of their fellow citizens stamps those "disowned of the happiness of love" as debauchees, by declaring as a vice what in the light of science appears only as a blameless defect, and offers them scorn, disdain, and contempt, instead of the proper compassion.
In addition to everything else comes centuries-old legislation codifying old prejudices and errors and legal jurisprudence catering to the delusions of the crowd. They brand these unfortunates as criminals, when, directed toward their own sex by their perverse natural drive, they come together for certain sexual acts. Moreover, they rob them thereby of their civil rights, their social position, and their freedom.
Unfortunately it is not exactly the worst, least valuable members of society who are persecuted in this way by Nature, public opinion, and the criminal justice system.
The homosexual is to a great extent a dégénéré supérieur, and often possesses brilliant intellectual gifts along with his awful sexual perversion.
This explains why illustrious names out of history, famous heroes, statesmen, princes, geniuses of the arts and sciences were and are homosexually inclined.
While anthropological and medical research has endeavored for decades with great effort to solve the riddle of contrary sexuality, and to bring proof that it is based not on the guilt of the individual but that of Nature in the form of a diseased, usually hereditary degenerative constitution, this knowledge, although it preserves the honor of many fellow human beings, has not penetrated to the masses of the people, who continue to scorn and disdain such unfortunates.
But also ever conservative jurisprudence holds fast to its traditions, cares little about the subjective (psychological) question of the offense, and continues to prosecute promiscuous offenses whether due to vice or due to diseased natural constitution and to punish them according to very peculiar standpoints (see below).
It is high time to emphatically put forth facts of scientific observation and experience to rescue the honor of and to protect unfortunate fellow human beings and to point out the need to reform laws that are based on errors in conflict with both scientific truth and humanity, and that bring little benefit and much harm by fostering blackmail and deception and driving unfortunate and often quite innocent human beings into disgrace, hardship, and death.
Such an attempt at enlightenment must first disprove three prejudices which are quite common with respect to homosexuals:
1. That the drive toward sexual gratification with their own sex is
a vice, not a disease.
2. That such homosexuals are devoted to anal sex.
[Krafft-Ebing often uses the term "Päderastie" to mean anal sex, as he does here (see below "re 2"), and often to mean homosexual sex in general between men.]3. That they chase after boys.
Re 1. Casper, the famous professor of forensic medicine in Berlin, found already in 1852 (Casper's Vierteljahresschrift) that homosexuality is mostly inborn and is also to be viewed as a mental hermaphroditism. Westphal (Archiv für Psychiatrie II, p. 73) declared that it was an inborn reversal of the sexual inclination. In 1877, I was able (Archiv für Psychiatrie VII) to describe contrary sexual inclination based on the cases published thus far as a functional sign of degeneration and a symptom of a neuropsychopathic condition mostly caused by heredity, an assumption which has been thoroughly confirmed by the collection of case histories which since then has grown to about 210 men and 25 women.
Almost in every case in which the health conditions of the family and in particular those of the parents could be found out, there were nervous and psychological anomalies. Often the perverse sexual inclination is apparent in several siblings, or blood relatives in general. The homosexual inclination usually appears abnormally early, not infrequently in childhood already.
It asserts itself usually with abnormal strength, governs the entire thought and feeling of the afflicted person in a frequently quite morbid manner, and can at times demand gratification so forcefully that control is impossible, all the less because this gratification is perceived as relieving, necessary, and natural, so that moral notions against it are useless.
In not infrequent cases, other decidedly pathological phenomena of the sexual life, in the form of so-called masochism, sadism, and fetishism, are also found.
The deep constitutional significance of the contrary sexual inclination further results from the fact that the sufferer is powerfully aroused sexually by the mere sight or touch of the person of their own sex, while a person of the opposite sex, even if it were an Adonis encountered by the woman, or a Venus encountered by the man, leaves them cold and practically evokes nausea in sexual intimacy. In that case there is no possibility of completing the normal sexual act.
The perversion expresses itself even in the unconscious life, inasmuch as erotic dreams exclusively feature sexual intercourse with persons of their own sex.
In cases of highly developed anomaly, a sense of shame is present only in front of persons of their own sex, but not in front of persons of the opposite sex. In those cases, even the psychological sexual traits (character, way of thinking, inclinations, etc.) of such woman-men and man-women are characterized in accordance with their homosexuality, that is, the man feels like a woman vis-à-vis a man, and the woman feels like a man vis-à-vis a woman. In the most severe developments of the anomaly, secondary sexual characteristics of a female may even show up in a man, and those of a male may show up in a woman.
In addition to the functional degenerative symptoms of the contrary sexual inclination, there are often other nervous and psychological anomalies, among the latter most often obsessive ideas, tics, temporary and even periodically recurring deep psychological depressions, among the former severe constitutional nervous diseases (neurasthenia, hypochondria, hysteria).
Remarkably often, the psychological personality is very eccentric, and quite uneven in its talents and abilities.
Along with brilliant but one-sided scientific or artistic gifts, the rest of the psychological life may be atrophied, and even quite defective in its ethical capacity (moral insanity).
Not infrequently, mental illness may also arise temporarily or permanently on such a degenerative base.
Judicial investigation tends to gloss over such facts of the psychological case findings in its effort to determine the external facts, and even rejects defense requests for forensic exploration of a case.
Re 2. Earlier legislation was based on the belief that sexual intercourse between men consisted of anal sex ["Päderastie"]. Probably for this reason as well, it does not deal with illicit sex performed by women with one another.
The former premise is false, because the homosexual man carries out active anal sexual acts only in cases of very low morality, that is, of a moral defect, or in case of a temporarily or permanently abnormally severe and in any case morbidly intensified sexual drive; more commonly he offers himself for passive acts, but only in the case of severely degenerative woman-men.
In general, it can be said that, outside of the above conditions, anal sex is foreign to homosexuality, and represents a complication, and where it occurs otherwise, it rests on a foundation of moral depravity, not neurotic degeneration, and thus should be viewed as a vice (perversity), not a disease (perversion).
In fact it is the contemptible practice of morally low, libidinous people who are forced to abstain from coitus (baths, prisons, etc.) or depraved libertines who then often become dangerous to boys, or ultimately the source of income for male prostitutes.
The kinds of sexual gratification which homosexual men pursue are auto-masturbation, in the absence of better alternatives, passionate embrace, which may be sufficient for ejaculation in cases of sufficiently excitable weakness of the spinal marrow, and otherwise mutual masturbation, or intercourse between the thighs or in the mouth of the male beloved.
Homosexual women gratify one another through kisses, embraces, mutual masturbation, cunnilingus; man-women sometimes try imitative intercourse using a dildo.
Re 3. The mere fact that homosexual love is totally analogous to heterosexual love, mutatis mutanda, permits the supposition that the homosexual is not dangerous to youth, because he is as unable as the normally-inclined to love what is immature.
In fact, crimes of morality against boys, committed by inborn homosexuals, are among the rarest of occurrences.
The actual seducer of youths is the imbecile born sexually normal, the impotent or at least sexually perverted and morally depraved debauchee, and the morally weakened and also sexually irritated old man.
Only on the basis of such accidental conditions can the homosexual by birth also occasionally become dangerous to boys.
At present, public opinion and to some extent even jurisprudence is still dominated by such prejudices and errors.
The least concession that advanced psychiatric research can demand from justice would be to carefully examine the psychological facts of a case in addition to the external facts. How seldom this appropriate demand is fulfilled can be related by defense attorneys.
But how erroneous in general the current state of legislation and jurisprudence
is in various countries with respect to sodomia ratione sexus, may
be found in the following paragraphs.
II. Past Law
In the history of all peoples and times, one encounters the fact that, in addition to natural intercourse of the sexes with one another, intercourse between individuals of the same sex also occurred.
Because science has succeeded only in modern times in differentiating vice (perversity) from disease (perversion) in this area, the question remains unanswerable as to how much should be attributed to one or the other factor with respect to the phenomena of widespread homosexual intercourse. It would be totally preposterous to attribute the occurrence of that phenomenon among entire peoples in antiquity (Greeks, Romans, and others) and among peoples of modern times (Orientals [at the time this word meant everyone east of Europe, in particular the Muslim Middle East]) exclusively to a diseased psychological condition.
To explain such a pandemic wide spread of homosexual mixing, which rightly strikes a more highly developed civilization as a vice, psychological, anthropological, and social reasons are totally sufficient, in the form of lower states of cultural development, great sensuality inherent in the race, and more difficult-to-attain mixing with women due to social institutions. Totally erroneous, however, is the assumption that male-male love was incompatible with the national greatness of a people or was the cause of its decline, for at the time of the greatest flourishing of Greece, pederasty was common in general [as noted above, Krafft-Ebing sometimes uses "Päderastie" in a restricted sense to mean anal sex and other times to mean homosexual sex between men in general].
To pagans, whose teaching about the gods exhibited so many sodomitical features, sexual intercourse between males could not appear objectionable in either moral or religious respects.
In ancient Greece, only male prostitution was contemptible and incompatible with the possession of civil rights. Probably it was only in order to control that, that Solon forbade male-male intercourse to slaves. It was open to free men, as long as it was not induced by seduction or violence (Ramdohr).
Among the Jews, who turned to pederasty through interaction with the Egyptians, the death penalty was applicable to the act. There is reason to believe that the legislator disapproved of it essentially out of concern for the diminishment of the population.
Among the ancient Romans, sexual intercourse between males was initially not objected to. With regard to sexual offenses, they were deemed offenses even later (lex Scantinia) only when committed against free people, since slaves were not legal subjects and pederasty against them could only fall under the rubric of property damage. As the vice of pederasty took the upper hand in the period of decadence of the Roman empire, Domitian saw himself forced to issue decrees to protect the youth.
"Edicto prohibuit, pueros intra septimum annum prostitui" ["it is prohibited by decree to prostitute boys under seven years of age"] (Suetonius). Finally, the death penalty was set on pederasty in general (see below).
With Christianity, not only concern for the good of the state, but also concerns of a moral and religious nature regarding pederasty became determining. Justinian (Montesquieu, esprit des lois XII, 6) declared it to be a crime, but punished it lightly. The legislation of Charlemagne and of St. Louis punished copulation between males with death.
Canon law deemed as sodomy (ratione sexus) only pederasty, but not other illicit sexual practices, which it designated as luxuria contra naturam.
The lex Carolina [hereinafter CCC] deemed as "punishable performance of illicit sexual acts" in any case only "intercourse against the order of nature" (in practical terms, pederasty), but in any case not other forms of illicit sexual practice "such as fricatio [rubbing] and manustupration [masturbation]" (Carpzow, Boehmer) and set the death penalty on it. The legislation of the various European countries still stood at this standpoint of the CCC until the beginning of this [the 19th] century. In fact, two pederasts were burned in Paris in 1750 on the Place de Grève, and even just a few years before the great revolution, a Capuchin named Pascal, who had committed pederasty, was executed in Paris (Curiosités judiciaires by Varée).
France was the first country in which criminal legislation first became conscious of its true mission, withdrew to its proper sphere with respect to sexual offenses, and considered only the crime, that is, the infringement of the rights of society and the individual, leaving it to morality and religion to combat vice. The motivations for suppression of the paragraphs in the Code Penal dealing with unnatural illicit sexual practice are, according to Chauveau and Hélie (Theorie du Code penal VI, p. 110): "To avoid the filthy and scandalous investigations which so often plow through family life and themselves cause the real scandal."
For France and those countries which have drafted their criminal legislation after the French penal code, illicit sexual acts exist only if 1) a public scandal ("outrage public à la pudeur") arose from it, that is, if the act was committed before witnesses or potentially before witnesses, that is, in a public place (Article 330); 2) if force was used in the commission (Article 332 to 333); or 3) if the act was committed against minors (Article 331, 332, 333). In addition, France has an Article 334, which punishes "habitual excitation for the purpose of debauching the youth of either sex below the age of 21 years," and an Article 354, which threatens punishment for "the corruption of minors" (Chevalier, L'inversion sexuelle, Paris 1893).
Legislation in Holland, Belgium, Luxembourg, and Italy (Penal Code of June 30, 1889) regarding sodomia ratione sexus is analogous.
The great criminal law professor Mittermaier (Feuerbach, Peinl. Recht, 1847, re § 467) confirmed that, according to the testimony of French jurists, there was no need for the reintroduction of a criminal provision against sodomy.
Even in individual German states the respective paragraph has been dropped (Bavaria since 1813, Württemberg since 1839, Hannover since 1840).
In Bavaria, this occurred under the influence of the brilliant criminalist Feuerbach. He argued as follows: "No one will approve of witchcraft, sodomy, illicit sexual practice, unbelief, heresy, blasphemy, etc. or view them as something permissible. However, such matters lie outside the sphere of a criminal law code as long as they are not connected with an infringement of the rights of the state or of a private individual. Where such rights are infringed, however, special provisions of law have already existed for a long time."
In the motivations for the Bavarian Criminal Code of 1813, it states:
"As long as, in illicit sexual acts, the human being transgresses only the commands of morality, without violating the rights of another human being, nothing has been provided about this in the present code." (Notes to the Criminal Code, official edition, Volume II, p. 59).
When a reactionary government in Bavaria wanted to see sodomy punished again on the occasion of a new criminal code in 1861, the chamber did not allow it, so that the respective § 217 was dropped.
Until the creation of a criminal code for imperial Germany, a special § 143 existed in Prussia that threatened punishment for sodomy and was derived from the CCC [Carolinian Criminal Code], but in practice the paragraph was interpreted only as pederasty. This also likely explains why the punishment of unnatural sexual practice between women was neglected.
As I see in Moll's excellent work (Die conträre Sexualempfindung, Berlin 1892, 2nd edition), Cella already (Ueber Verbrechen und Strafe in Unzuchtfällen, 1787) postulated the impunity of sodomitical women for the following erroneous reasons: 1) Because the pleasures of coition in their interfeminine intercourse were after all only very incomplete and unsatisfactory, and licentious girls who gratify themselves in that way will still sooner return to the normal path of Nature than men who indulge in male-male love!! 2) Because the number of homosexual men was significantly greater than that of homosexual women (?).
When they set about to draft a criminal code for imperial Germany, § 143 of the Prussian criminal code formed the starting point of the discussion about the opportuneness of including criminal provisions against sodomy:
"Unnatural illicit sexual practice, which is committed between persons of the male sex and by human beings with animals, shall be punished by imprisonment. The loss of civil rights may also be declared."
With regard to the opportuneness of keeping this paragraph, the highest medical authority of Prussia, the Scientific Deputation for Medicine was asked to produce an opinion (see Appendix I), which, in regard to the motivations for keeping the paragraph (great degeneration and degradation of the human being, great danger to morality to the extent that illicit sexual practices occur between persons of the male sex) first cited the Austrian criminal code draft of 1867, which found the acts at issue not to be different from other illicit acts not subject to punishment anywhere to date, and therefore themselves not punishable.
In concurring totally with the opinion of the Austrian draft, the Scientific Deputation did not neglect to point out that mutual manustupration [masturbation], which the Royal Prussian Supreme Tribunal did not object to and which is not recognized as illicit sexual practice between persons of the male sex, is actually the only thing that is dangerous and harmful to health, while imitative coitus between males, like normal coitus, can become adverse only in excess.
With regard to the degradation of the human being and the particular immorality allegedly found in pederasty, the deputation pointed to other forms of illicit sexual practice which occur in the most disgusting manner between men and women or mutually between women, and declared that it was unable to find any reasons why, although these kinds of illicit sexual practice are ignored by criminal laws, only that with animals or between persons of the male sex should be threatened with punishment.
Although this opinion had been issued by the eminent authorities of the Medical School in Berlin, including names like Virchow and Langenbeck, nonetheless the pious Culture Minister von Mühler succeeded in pushing through the punishment for sodomy "in the interest of public morals" (as he wrote to Justice Minister von Leonhardt on April 12, 1869), and § 143 of the prior Prussian criminal code was adopted without change as § 175 in the Imperial German Criminal Code.
Although the justice system completely overlooked their standpoint and placed itself in the service of individual morality, thereby exceeding its proper sphere, which naturally can only be that of social ethics, it was reassuring nonetheless that, in the interpretation of the law, only pederasty was prosecuted in practice.
Since pederasty (see above) is almost exclusively a vice, and since morbidly perverse men (homosexuals, often called Uranians) generally only perform acts similar to coitus excluding pederasty or even only the manustupration tolerated under criminal law, it was to be assumed that in general only debauched persons would come under the arm of the justice system, but not diseased persons, who only have intercourse with one another due to a perverse, relieving, and naturally-conditioned drive, and often under physical necessity and psychological compulsion.
But the situation was to change. Because, apparently, under the influence
of § 175 denouncers - blackmailers - and male prostitution flourished,
because the trials against sodomites increased, but among them there were
also homosexuals, who shun the anus and thus did not fulfill the constitutive
facts of pederasty, and yet the respective paragraph demanded its victims
and the judge, according to the false aspect that the legislation had taken
on, saw himself as the protector of threatened individual morality, they
arrived at the finding that acts similar to coitus, as equivalents to pederasty,
and even merely acts associated with coitus were sufficient as constitutive
acts of the offense. *)
*) [Cf. the law texts by Berner Meyer, Hälschner; s.f. Oppenhoff, Commentar zum Staatsgesetzbuch für das Deutsche Reich, 10th edition, Berlin, 1885; Gretener, Zeitschrift des Bernischen Justizvereines XXII, p. 115; Prussian Supreme Tribunal VIII, p. 356, XV, XVII, XVIII; Munich Superior State Court II, p. 129; Württembergisches Gerichtsblatt XII, p. 414; Decisions of the German Imperial Court I, p. 196, II, p. 248, VI, p. 212, XX, p. 225; Jurisprudence of the German Imperial Court X, p. 416.]
This legal view contradicts the entire history of criminal prosecution of sodomy, indeed it goes further than its source, the Carolina, which punished only pederasty and therefore also punished sodomy between women, but only when an act similar to pederasty was present (for example, undertaken using an "artificial instrument", i.e. an artificial penis, a so-called dildo); it seeks to strike at vice, but mainly strikes only diseased, i.e. psychosexually morbidly organized human beings, by driving them into disgrace, hardship, and death, even if it sentences them perhaps to only one day in prison (the minimum penalty in Germany for this offense), and moreover it cares nothing at all about the scientifically confirmed and easily demonstrated factual difference between vice and disease! This unfortunate practice of law compels the judge toward the most embarrassing, virtually revolting findings of objective constitutive facts, that come down to the issue of whether frictions, i.e., acts similar to coitus, took place on the body of the male or not, while the only witness is usually the passive partner, who is also often a blackmailer, a male prostitute, a scoundrel, who cares little about making a false oath, all the less because he might otherwise possibly be accused of slander.
Such a legal practice is highly inconsistent, however, since, by basing itself on the standpoint, which it does not deserve, of reproving vice, and "intending to protect the moral essence of the human being against his own immorality," making concessions to popular consciousness, "because such acts reveal a great degeneration and degradation of the human being" (Prussian Supreme Tribunal VIII, p. 356), it attacks the moral sensibility of the citizenry, by giving free reign to manustupration between men, tolerating sodomy between women, and failing to object to a whole number of other illicit sexual acts, no less disgusting, for example, anal intercourse with women.
This entire practice of law is also completely incomprehensible from a physiological standpoint. The purpose of all sexual acts is that of the gratification of sexual needs. The gratification occurs in the homosexual or heterosexual act, with men or with women, by ejaculation of semen or by an analogous occurrence (with women), which is accompanied by a vigorous orgasm and lively feeling of sensual pleasure.
The punishable factor in the homosexual act, if punishment is necessary at all, would be the achieved or attempted gratification on the body of the same-sex person. The fraud [dolus], juridically speaking, would lie in the intention to achieve such gratification, not in the manner and method by which the achievement of this outcome is attempted. That depends on the particular conditions in the organism of the perpetrator. For many, the outcome occurs with mere sight, touch, embrace, or kissing of the other person, due to a sensitive weakness of their reproductive organs. Others require acts "similar to coitus". One such act, however, in a highly particular manner, is manustupration among men, and among women cunnilingus of one woman on the vagina of another, etc.
Because the woman lacks a reproductive organ, she was not criminally prosecuted for sodomy in Germany from the CCC until modern times! As if she could not find homosexual gratification by other means! The above opinions of Cella are completely erroneous. If society intends to punish sodomy by men, then it must be consistent and also punish the woman committing such acts!
But the existence of § 175 is not only regrettable from the standpoint of the physician and natural scientist. Jurists themselves have condemned and do condemn the punishment of acts which can touch only on morality, not law, and which can become crimes only as a result of certain accompanying circumstances (committed against minors, or publicly, or with use of force, deceit, etc.).
In this regard I will limit myself to citing the statements of Prof. Bridel (Geneva) in "Revue de morale progressive 1887" (September), Prof. von Liszt (Lehrbuch des Strafrechtes", 4th edition, p. 397), who speaks decidedly in favor of limiting punishment to professional pederasty, and Prof. Sontag (Goldtammer's Archiv, Vol. 18, p. 15) who complains bitterly that in spite of the objection of the Scientific Deputation for Medicine, § 143 of the Prussian criminal code was kept and merely reduced in the penalty, in order to satisfy the "popular consciousness" which views unnatural illicit practice as a degradation of the human being, as a horrible vice, crime, etc. With all due respect to popular consciousness when it manifests itself in favor of moral feelings and views, it is a precarious thing to base a right of punishment on such a fluctuating and uncertain foundation. It is the same popular consciousness that in times past burned sorcerers and witches at the stake until the progressive natural sciences were able to demonstrate that no such fiends existed, but rather that the unnatural or supernatural was being confused with something that belonged to the domain of pathology. But although the great doctor Wier already approached the emperor and the empire in 1515 with the plea to spare supposed witches because they were only melancholics, manics, or hysterics, the judges and popular consciousness would not take instruction, and witches were brought to justice until well into the 18th century.
"Popular consciousness" finds itself in a quite analogous situation today with respect to the sodomites. It lumps vice and disease together, and has no idea that a significant share of the former act in this way, not due to an inclination to vice, but rather due to a diseased compulsion. Medical science has long ago proven this to a complete certainty, but the ever conservative justice system does as in Wier's times, it shuts its eyes to the facts of scientific research and, instead of reforming legislation on the basis of it and acting to enlighten a popular consciousness caught up in prejudice, it lowers itself to the same level as it and even appeals to it in order to provide alleged legal reasons for the punishment of acts whose condemnation in popular consciousness is due to the gravest errors.
Chevalier says quite rightly in his work about sodomia ratione sexus ("L'inversion sexuelle", Paris 1893), p. 493: "It is time that society (writers, sociologists, philosophers, etc.) was enlightened to the fact that besides vice there is disease, that human beings exist for whom that, which society forbids to them and calls a vice, is the only means to satisfy their sexual needs."
In fact, an enlightenment of the masses of the people and also of jurists about certain pathological foundations of sodomia ratione sexus is urgently needed.
A high German state official, himself a homosexual, says very truly
in "Friedrich's Blätter für gerichtliche Medicin":
"The dominant idea in both the educated and uneducated public is that love for one's own sex is the product of physical and moral degeneration and depravity. The state and society reinforce one another in their prejudice. The legislator appeals to 'popular consciousness' and the society sees its standpoint sanctioned by law and justice, and ignores Goethe's parable of the self-perpetuating hereditary disease.
"Unfamiliar with the fact, proven by medical science, that such offenses are regularly explained by a natural drive that often acts even with particular force, the judge follows in good faith the traditional explanation of the moral reprehensibility of all sexual perversity, which is all he knows, and since he feels not the slightest temptation in himself to violate the law of morality on this point, he imagines its source to be an unfathomable abyss of moral vileness and, accordingly, reacts both instinctively and from conviction, with the full fierceness of the punitive means at his disposal, against the manifestations rising up before him out of this dark and scary depth, comparable to the pious peasant who, full of the enthusiasm of blind faith, carried his piece of wood to the stake of Johann Huss."
It suffices to take a look at the determining motivations for keeping the sodomy paragraph, in order to recognize their untenability in view of the results of modern medical research. They claim "that the legal consciousness among the people judges such actions not only as vice but as crimes, and the legislator therefore had to have misgivings about contradicting this view of the law and declaring acts to be exempt from punishment which public opinion fortunately views as deserving of punishment. To remove the condemnation of such persons, who in this way have sinned against the law of nature, from the criminal code and entrust it to moral law, would undoubtedly have been criticized as a legislative mistake."
§ 175 of the German Criminal Code is thus based entirely on the public opinion of the people and must stand or fall with it.
If it were possible to spread the knowledge gained by medical science about the homosexual inclination, just like any other truth, then the last ground would be removed from under this paragraph. Thus the juridical side prefers to ignore science and to preserve prejudice by unjust jurisprudence, just like the witch trials of the Middle Ages.
But the legal practice totally overlooks the fact that by prosecuting acts "similar to coition", it overshoots its target, because popular consciousness only recognizes the vice of which we are speaking here, in the sense of pederasty.
It was already explained above that individuals who only commit acts similar to coition with persons of their own sex, are without exception diseased persons. Popular consciousness cannot possibly intend that fellow human beings, who feel the unfortunately but admittedly perverse drive of Nature just as vigorously, indeed even more strongly that the normal-sexual person, should suffer punishment when, under the same limitations which exist for the exercise of the sexual drive in a civilized country generally, they obtain gratification of their drives, without violating the rights of the state or of another person.
If the state wants to uphold § 175, then it should return to the original interpretation of it and limit it to the constitutive fact of insertion of the member into the body (mouth, anus) of a living male.
Even in this form, § 175 will cause enough harm, in that it forces unfortunate, morbidly organized human beings before the public, and involves them in investigative hearings, even if it does not ultimately indict.
It would be much better, however, finally to abandon this paragraph, which only causes harm but never changes those of a diseased nature, because its premises are untenable.
Grolmann already rightly expressed the principle (Criminalrechtswissenschaft 1798, § 559): "A law, which is based on an idea about the matter it addresses which is recognized to be incorrect, no longer has the force of law for us."
For the sake of completeness, it should be mentioned under Past Laws that the Austrian criminal code (§ 129) also prosecutes sodomia ratione sexus between women, and otherwise conforms to the standpoint of the German legislators.
Russia punishes pederasty by the withdrawal of all civil rights and deportation to Siberia (§ 1348), but if force was used or the crime was committed against minors or imbeciles, the punishment of hard labor for 10 to 12 years is incurred (§ 1349).
The criminal code of the State of New York dated July 1881 likewise punishes unnatural illicit sexual practice, but it requires penetration of the sexual organs into the body of the other person as the constitutive fact of the crime (Article 304). Germany is the only country in which even acts merely similar to coition constitute the offense provided for in § 175.