Part 38 (1/2)
When, on the contrary, a male minor seduced by an adult woman, makes her pregnant, it is the woman only who is responsible for the maintenance of her child, and there are no reasons to accord her the right of abortion, for it is she who desired the s.e.xual act. The close bonds which exist between the child and its mother justify such legal dispositions.
With regard to civil laws, we have mentioned the case of venereal infection after coitus. In this case civil indemnity would be most equitable. A penal action could only be based on prosecution by the injured party, unless it was a question of directly criminal intent--infection for vengeance, for example.
=Incest.=--Under the heading of _consanguineous marriages_, we have seen to what extent the conception of incest should be limited, in respect to civil law. The grave cases of incest are those between parents and children. Their normal causes are mental anomalies, alcoholism, proletarian promiscuity, or isolation of a family in some remote place. Incest is common, in Switzerland especially, among the inhabitants of isolated mountain chalets. I will give a few typical and genuine examples of incest giving rise to penal actions:
(1). A drunken and brutal husband persecuted his wife with excessive coitus. The latter then gave him her own daughter to satisfy his violence.
(2). An inebriate woman induced her own son, aged seventeen, to have intercourse with her. Infuriated at the idea that his mother had made him her lover, he murdered her one day when he was drunk. Condemned as a parricide, this young man conducted himself in prison in a model manner. Alcohol, combined with his incestuous seduction, had made him the murderer of his mother.
(3). In a family composed exclusively of imbeciles and psychopaths, some of whom were put under my care for treatment, incest was practiced among nearly all of them; between father and daughters; between mother and sons; and between brothers and sisters.
The last case, and many others, show that incest is not the cause but the effect of mental disorders. This does not mean that the offspring of such unions are not slightly tainted by the mere fact of such concentrated incest, but these cases are comparatively so rare that they do not contribute to any appreciable extent, as incest, in causing degeneration of the race; the factor which causes degeneration is here mental disease, which arises from other hereditary causes, chiefly of blastophthoric origin.
From what we have said it results that a penal action for incest should only take place in the case of minors or insane persons, abuse of strength or power, or rape. The measures of civil law should suffice to reduce other cases of incest to a minimum.
The disgust which the generality of men feel for s.e.xual union between brothers and sisters, and especially between parents and children, is the best protection against incest. The elimination of alcoholism, the superintendence of the insane, and the improvement of our social organization are much more likely than penal laws to lead to the gradual disappearance of incest.
=a.s.saults on Minors.=--All a.s.saults on minors should naturally be prosecuted. But prosecution should take a different form according as the culprit is affected with a pathological perverse disposition, or whether it is simply a question of abuse of confidence committed by a normal man. A master who, having no s.e.xual anomaly, commits a.s.saults on young girls, his pupils, should be deprived of the right of teaching in girls' schools, for it is only there that he is dangerous.
If, on the other hand, he is affected with perversion (pederasty, etc.), further measures for protection should be taken against him; according to the circ.u.mstances.
=s.e.xual Perversions.=--When we pa.s.s, on to s.e.xual perversions, the inconsequences and mysticism of our present penal law become still more apparent. This code often prosecutes and punishes s.e.xual actions which do no harm to any one, or which two persons practice of their own accord. Such cases may be suitable for moral or medical treatment, but should never justify a penal prosecution. This applies to all the manipulations of onanism, pederasty, masochism, fetichism, etc., which take place between adults by mutual agreement.
What is the use of prosecuting inverts? It is a fortunate thing for society that these psyhcopaths are contented with their mutual s.e.xual intercourse, the result of which is sterile and therefore does no harm to posterity. The real crime is the marriage of an invert to an individual of the opposite s.e.x, and yet this crime is sanctioned by the law! It is a crime against the normal conjoint and against the children who may result from such an unhappy union. By severely punis.h.i.+ng h.o.m.os.e.xual intercourse, the penal laws of many countries provoke the lowest form of blackmail, as Krafft-Ebing, Moll, Hirschfeld and others have proved by numerous examples, and as I have myself confirmed among many of my patients.
It is quite another thing with abnormal or perverse forms of the s.e.xual appet.i.te, which can only be satisfied against the will of their object, or by injuring it more or less severely. Here it is the duty of the law to organize energetic measures of protection; not with a view to punish the pervert, who is a diseased person, but to protect his victims in time.
We will first deal with _sadism_; secondly with the violation of children. Here a very delicate question arises. In the case of such terrible s.e.xual appet.i.tes we should not wait for victims before taking action. On the other hand, we cannot punish a man, nor even take administrative measures against him, simply from the fact that he possesses a dangerous appet.i.te, especially if he is in other respects well-behaved and conscientious, and strives with all his might against his perversion. I have treated a patient who suffered from a terrible pathological appet.i.te of this kind. He was a highly moral man who never harmed any one, but was in a state of despair over his affliction, which he resisted with all his power, seeking relief in masturbation when his pa.s.sion became too violent.
In such cases, the moral sentiments of an individual offer sufficient social protection, and it is neither the right nor the duty of the physician to denounce him. But he should advise the patient to retire to an asylum to avoid committing a crime, if he feels that he cannot restrain his pa.s.sions. It is very rare for such cases to come to the knowledge of the public, for these patients prefer to suffer in silence or to commit suicide; but they are none the less instructive and characteristic.
At other times dangerous perversions are discovered by chance, the pervert, instead of resisting his pa.s.sion, seeking opportunities to satisfy it without discovery. In such cases strong measures should be enforced. Unfortunately, s.a.d.i.s.ts are very well aware of the dangers they run, and know better than any other criminals how to commit their crimes without being discovered. As soon as the perpetrator of a sadic crime is discovered, or simply an attempt at sadism, he should be arrested and placed where he can do no harm. The question of castration arises here: but we do not know yet how far this protects the s.a.d.i.s.t and his victim against recurrence. If this operation proves efficacious it should never be neglected.
The _exhibitionists_ present great difficulty. They are not dangerous, since they touch n.o.body. Their ”victims,” if they can be called so, are girls or women before whom they expose their genital organs and m.a.s.t.u.r.b.a.t.e. No doubt modesty may be much offended by such acts, especially in young girls and children; disgust and fear may also harm them; but I think the law is too severe in these cases, for there is no question of an injury which is dangerous in itself. I have known little girls who have been frightened several times by exhibitionists, but I have never known them injured by the disgust which they experienced. The affair is too ridiculous and too ugly. It would be sufficient to send exhibitionists to an asylum for short periods, unless extreme weakness on their part necessitated prolonged detention.
Simple _necrophilia_ should be treated in the same way by penal law.
But this perversion is more dangerous on account of its relations.h.i.+p with sadism. There are some s.a.d.i.s.ts who are only necrophiliacs for fear of becoming a.s.sa.s.sins. Such individuals are very dangerous and should be kept in confinement.
The _fetichists_ are, on the contrary, generally very innocent. At the most they might be prosecuted for theft when they take away their fetiches. One of their worst misdemeanors is that of cutting off the hair of young girls.
=Concubinage. Prost.i.tution. Proxenetism. White Slavery.=--We have already seen that concubinage should never be punishable in itself, although it is so in some countries. We shall not again return to the question whether prost.i.tution should be the object of judicial and penal actions. Proxenetism and white slavery, on the contrary, cause grave injury to the rights of many individuals and should be made criminal offenses; for they are crimes against society and the individual, and committed for lucre. It cannot be legal to do commerce with the body of one's neighbor: this is a crime which is closely related to slavery and similar abuses. (Vide Chapter X.)
The law should punish all public solicitation, obscenity or s.e.xual brutality, but the punishment should take a milder form. The s.e.xual act and everything connected with it should be absolutely free, but a man has no right to provoke or annoy his neighbor by indecent s.e.xual invitations if the latter does not wish to respond to them.
It is, however, extremely difficult to fix the limits of what is licit, for prudery may also go too far and regard the most innocent allusions as provocations. It is absolutely necessary to leave a margin for normal s.e.xual invitations. All that is required is that they should not overstep the limits of recognized propriety, so long as there is not mutual agreement between the two parties. (Vide _Flirtation_, Chapter IV.)
=Lewdness. p.o.r.nography.=--The question naturally presents itself of knowing how far it is permitted to proceed publicly with a mutual agreement without causing offense or injury to other parties. On the whole, our customs are free enough in this respect, and a greater liberty in public flirtation would be inconvenient. For instance, lewd exhibitions, coitus, etc., could not be allowed in public places.
Children especially should be protected against such excitations of the s.e.xual appet.i.te, and it is necessary to fix a legal distinction between what is offensive and what is not offensive to public propriety or modesty.
Simple police regulations are sufficient for this purpose, but they are very necessary to protect women and children, and occasionally young men, against importunities or s.e.xual obsessions, against s.e.xual solicitation, or even against a.s.sault or other offenses, such as incitement to masturbation, obscene words and gestures, etc.