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Johann Jakob Cella
 

Ueber Verbrechen und Strafe in Unzuchtsfaellen. [On Crimes and Punishments in Cases of Unchastity.]

Zweibruecken und Leipzig, Ludwig Philip Hahn und Kompagnie, 1787.
[with handwritten corrections in the same hand as a note on the facing page of the title page that says: "Theotner [?] [illegible] 1787 15 June. Received from the author."]



 
 

Carnal crimes arise from the misuse of an enduring need that is common to all of nature; a need that is older than society, for which in fact it has laid the foundation; on the other hand, other crimes are aimed at the destruction of societies, and originate rather from the passion of a moment, than from natural needs.
-- Beccaria.


Part One. On legislation in general, especially criminal legislation.

Part Two. On legislation with regard to cases of unchastity (delicta carnis).
First Main Section. On unchastity committed against the laws of nature.
Chapter One. On masturbation (mastupratio).
Chapter Two. On boy-defilement (sodomia sexus). [includes a discussion of whether sex between women can be considered sodomy]
Chapter Three. On unchastity with animals (sodomia generis).

Second Main Section. On cases of unchastity that violate the laws of civil society. [= copulation by unmarried persons (fornicatio, stuprum), adultery (adulterium), dual marriage (bigamia), incest (incestu), pimps and panders (lenocinium), a few other crimes committed for the sake of copulation, including rape (stuprum violentum), seduction (raptus).]




[Part One.]

[p. 9]
§ 5

Our laws about so-called carnal crimes are simply no longer suited to our times.

But in particular, if we return to our German criminal laws, then probably no section of them is so antiquated, so unfitting, so much in need of remolding - not just in in terms of its expression and ornamentation, but fundamentally - as the doctrine concerning the so-called carnal crimes. This doctrine, in which Jewish ceremonial stringency, Christian moral teaching, relics of old German propriety and honor, and canonistic nonsense are jumbled together in the most ludicrous contrast; where laws that owe their origin to the hardheartedness of nomadic, extremely lascivious Oriental peoples - to the excessive power of a sly woman over her imperial husband - to the natural aversion of a warlike, hardened people living in its original innocence and savagery - to the blind zeal of spiritual eunuchs: are applied to the northern but now extremely softened German people, who are as enlightened as they are extravagant.
 
 
 
 



[p. 37] [Part Two.] First Main Section. On unchastity committed against the laws of nature.

§ 25

Even unnatural unchastity is not for that reason a felony crime.

If it is true in general about carnal offenses that in and of themselves they do not constitute an actual felony crime: then this is true above all of that form of unchastity in which what is disallowed consists in the fact that one attempts to gratify the drive toward reproduction against the order and purpose of Nature. In this case, as well, no other human being is really injured, and so the State cannot possibly step up as the judge and avenger of an injury inflicted against the rights guaranteed to a fellow citizen by the State. The fact that a person ruins himself, and debases himself and his moral character, in and of itself makes no more of a felon out of him than is the one who makes himself a useless, sickly person by unnatural enjoyment of strong drink, or even who gradually drinks himself to death.
 
 
 
 
 

[p. 38]
§ 26

Even the police must approach their work very carefully in punishing it.

In order that unspoiled members of the State, and those who require the direct guardianship of others due to their tender age, should not be seduced; in order that no public nuisance arises: for these purposes the morals police - but not criminal legislation - can and may be on guard; it may take steps against it, it may punish it. But this punishment must be performed in this case with double caution, so that the scrutinization and investigation of these shameful acts, that usually take place in secret, do not themselves cause the public nuisance (*) that one was intending to control; or so that ...
 

(*) It is likely the most remarkable thing that many law teachers did not even refrain from setting up a court for criminal jurisprudence behind the curtains of the marriage bed, and to grant it the right to investigate whether even a husband and wife were not making themselves culpable of some filthy sexual play. With astonishment I read the following passage in the work of Sam. Frid. von Boehmer, the honorable commentator of the Imperial Penal Code, in § 2 of his comments on Article CVI [sic - should be CXVI] where he deals with sodomy:
Idem dicendum, de his qui perversam venerem in vas non debitum exercent, ore, mammis, natibus abutendo, si vel maxime inter conjuges hoc contigerit, quum matrimonii vinculum monstroso huic congressui spurcitiem detrahere nequit. -
This is certainly the least skillful way to uphold morality, propriety, and honorableness! [footnote continued next page]

 
 

[p. 39] methods are not applied that have worse consequences for the morality of the people than those filthy desires. Woe to the police who - in order to discover every sinister outbreak of unchastity - make parents, children, and household staff into self-interested spies; and
 

Only someone whose short-sighted and simplistic pedagogy and policy deems the rod and the cane to be the only means to raise children, and fear of the bailiff and executioner to be the only means to better the human being, can have first had the idea to manage abstinence and chastity among married people by publicly undermining matrimonial modesty, and made things that ought to remain private the subject of public judicial investigation; and characterized actions as felony crimes where in some cases even the most sophisticated casuist would scarcely dare to define the boundaries of morality; and where it is always better for morality if once in a while an unexperienced or too affectionate married couple commits an extravagant debauchery, than if men and women are instructed in this subject all too well in advance, and thus lose at least the excuse of ignorance for their error. Even for the police - if in fact bad moral habits that may indirectly harm the State, the population, or general morality, belong within their field of responsibility - the marriage bed must remain sacrosanct; they must not nosily pull back the cover that natural modesty pulls over what happens between married people, in order to spy purported sodomy, masturbation, or other impurities.




[p. 40] sow the seed of falseness, betrayal, and mistrust in the most intimate bosom of the family, and into the lowest huts.

Chapter One. On masturbation (mastupratio).

§ 27

Whether the idea of classifying masturbation among publicly disapproved crimes was compatible with morality?

My knowledge of the literature of criminal law is still too limited to say who first came up with the idea of classifying masturbatory unchastity under the felony crimes as a sub-type of sodomy. Probably this vice is no more an original product of northerly Germany than are the punishments placed on it, but rather were first transplanted here from more moral [southerly] regions. In a nation where youth matures much later; where - with the exception of some exceedingly lofty noble residences - the great masses still mainly follow the course of Nature in their sensual pleasures; in which the art of arousing irregular drives by
 
 
 

[p. 41] unnaturally exciting the imagination is still rather foreign; where neither the climate, nor the food, nor leisure create so easily in the common man a disgust for the usual means of satisfying the natural drives toward pleasure; where the majority is protected early against all too frequent, all too early stimulation toward lust by tiring work, and by the naturally stronger, coarser structure of the nerves in northern regions; where in general the most residues of natural modesty have always been found among the youth: this vice, nourished by softness and leisure, could not arise so easily; could not occur to anyone so easily. To uncover publicly the filthy, dark hidden pathways of this vice, and give publicity to an contagion - that can best be prevented at the beginning by stopping its becoming known - by placing it on the list of public crimes and thereby providing an occasion for jurists and legal scholars to endeavor, in their expert opinions and commentaries, to lay carefully before the world in print all of the disgusting variations of this unchastity.
 
 
 
 
 

[p. 42]
§ 28

Why actual punishments must only rarely be applied in the case of masturbation.

Even now when, in fact, the prevalence of this vice and the public nuisance might demand countermeasures on the part of the police: the application of means of punishment to control this evil cannot be handled cautiously enough. For who are the ones who pollute themselves with this vice the most? - Usually young immature persons who are usually seduced toward this unchastity by servants and comrades at a time when they do not understand what is ruinous and improper about this vice, which - as experience shows - cannot be overcome so quickly, even with the best heart and intention, and can even less easily be extinguished by judges, policemen, and officers. One need only read Tissot and other men, who have gathered practical knowledge of it and have encountered so many who could not be brought back from these debaucheries, even by the most terrible accidents and actual perils that arose from them. I have never been able to hear, without disgust and revulsion, when there was talk of criminal laws in which brooms and other defaming punishments were imposed for this offense; and I would think about how immeasurably great a misfortune could occur, if
 
 
 

[p. 43] some ignorant or wicked judge were to make use of these laws, and undertake criminal inquisitions against young, immature, hopeful children, who might have come back from this vice on their own or through the faithful care of their parents or instructors, but now have been publicly branded as criminal felons, and made useless - ruined - for their entire lives, and by a youthful error, which it was so easy for them to fall into, have made themselves and their entire families miserable.

§ 29

On Tissot's and Salzmann's descriptions of this vice.

Unfortunately, by now this evil has gained such momentum in Germany, that it must be a major concern of the morals police to combat, with all of its power, this terrible evil that is so ennervating for the mind and body of our present generation. It is true that the consequences are not always as obvious and terrible as the image portrayed by Tissot, Salzmann, and others; and it would be desirable that these men would not lay the color on so thick in the paintings they have made of the terrible form of this vice, and that they had called the attention of youth rather to the less destructive, less noticeable diseases that masturbation brings with it. For, as I can testify from frequent
 
 
 

[p. 44] and careful observation, there are many young people, who begin with this vice - even before they reach puberty -, and indulge in it to a rather large extent for several years: and yet when they later free themselves from it - naturally not without a lot of effort and strain -, they nonetheless remain blossoming youths, and produce healthy, well-formed children in marriage; although every one of them, if he is attentive enough, will notice clearly enough in himself the consequences of his juvenile foolishness, of which consequences others however scarcely become aware, and so can easily be led to the idea that the description of this vice and its harmful effect was basically exaggerated and invented, because one sees so many examples in which the mind and body have not suffered so much from self-pollution. In many cases, meanwhile, the descriptions of those meritorious men have proven only too true, and their complaint about the general spread of this vice only too justified. This too is true, that the germ of this vice lies mainly in the public schools, as they have been constituted so far; and that there are few secondary schools, orphanages, and children's homes, where this poison does not lurk in the dark corners. It has been scarcely 10 years since I heard unanimously from the mouths of several youths at a certain
 
 
 

[p. 45] well-regarded orphanage: that not only the young fellows were almost entirely devoted to this vice among themselves, but that even guardians and teachers were there at the time, who drew the youngest and most beautiful boys to themselves and caused masturbation to be performed by them. This very thing could be confirmed more or less in other orphanages and large schools as well.

§ 30

The actual most effective means against this vice must be provided by pedagogy.

The greatest and most effective thing that can be done to eradicate and prevent this vice must be taught through rational and thorough pedagogy; and it is not my purpose here to go into the means and methods that would be useful in this regard. I would like to recall only one thing, namely that perhaps thousands of useful experiences and comments have gone unused and hidden so far: because masturbation is counted among the criminal felonies to be subjected to the broom and other criminal punishments, so that no one will willingly admit publicly even that he has overcome this vice. On the other hand, if this bad habit were seen for what it truly is, namely a moral offence like drinking, gambling, violent temper - which one is not ashamed to admit after it has been overcome, and if one thought one could do good
 
 
 

[p. 46] by warning others against it: then many a one who has fallen under this disease, through the experiences that he made in his own case, could share many a practical suggestion with the public on how to root out this evil, suggestions that cannot be expected to come from teachers and pedagogues who have only observed it in others.

§ 31

To what extent punishments by the police can have an effect here.

In and of itself, it cannot be denied that morals police must be guard, if necessary using punishments, to see that masturbation should not become too prevalent; that even more innocent minds should not be infected by it; that a public nuisance is not provided by it; and that entire generations are not indirectly ennervated by it in body and soul. But to punish every one who indulges in this vice in private by himself, even merely by the police, would certainly be unnatural and inappropriate. The general morality never gains from public investigation of such hidden improprieties; and often the scorn, the punishment, that impacts the guilty can exceed the magnitude of his offence to the point of injustice: since ignorance, temperament, chance, and seduction are the most frequent sources of this vice, which have to be taken into account all the more because, as was already said, no vice is more difficult to rid oneself of than this one. Even the investigation
 
 
 

[p. 47] that would have to be performed in this case, the means that the police would have to apply, in order to discover this offence in individual persons who practice it in secret: has so much about it that offends morality and prudence, that it must be viewed as an evil that exceeds the vice that is supposed to be punished.

§ 32

To whom the punishment and prevention of this vice should be entrusted in the case of immature and minor persons.

In the case of immature, minor persons, the punishment and prevention of this vice should be entrusted to the parents, guardians, teachers, and pedagogues alone, and consideration should be given to the introduction of proven means and methods against this evil in schools and children's homes. Even the punishment of young persons who have used other comrades for their lust or have seduced them toward this very vice: must be entrusted to parents and teachers as long as they hope to achieve improvement with pedagogical correctives alone. If any particular subject should appear, who already at his tender age displayed signs of wickedness and justified the fear that he would not so easily desist from the seduction of other, still innocent fellows, then it must be made the duty of teachers and pedagogues, and the option of parents, to report such a young person and
 
 
 

[p. 48] hand him over to the police for stern correction. I cannot recommend making it a parent's duty to make such a report, for the reason: that I hate everything unnatural in police measures, and it is always unnatural to demand of parents that they should consider their own children incorrigible and deliver them up to public disgrace. Such heroic virtues are not suited to the spirit of our century and of our governments.

§ 33

Grown persons who use or seduce others to this vice should be punished by the police.

However, as soon as any grown person performs this vice not merely alone in secret, but rather uses other persons for the purpose, and seduces them to the same vice, then the police must intervene immediately, directly, and severely.

§ 34

Regarding the procedures to be observed in such investigations.

Only in the type of investigation and the evidence to be brought, a great caution must also be exercised. Only married men of respectable reputation should conduct the investigation, who will not get into minute, detailed inquiries and narrations of these obscenities; who will seek only to become certain of the fact, as quickly as possible; and preferably will not keep a literal protocol,
 
 
 

[p. 49] but rather note with a few words the name, act, and punishment.(*) In the case of police punishments, no greatly detailed comprehensiveness is required: and complicated protocols about such sybaritic histories serve no purpose, other than sooner or later to cause some precocious child of a court employee, a young scribe, or maybe a lecher among the court assessors to himself become lustful while reading such documents and undertake similar attempts.

§ 35

A few words about police dogs.

Not everyone should be able to bring a charge, and police dogs should also not be used for it (the use of which by the police, in my view, can generally be recommended only in the same way as certain forms of poison that are occasionally used as drastic means in medicine). I detest spies, no matter what form they come in. In this, I agree entirely with Montesquieu (**): "Spying, he says, might yet be tolerated, if the profession could be carried out by honorable people: but since such people necessarily must be evil fellows
 

(*) E.g. The maid Barbara N., having been referred for having seduced her employers' child to masturbatory unchastity, was today sentenced to such and such a punishment.

(**) In his Esprit des lois, Vol. II, Book XII, Chap. 23.


 
 

[p. 50], one can easily draw the conclusion of how disreputable the matter itself must be -"
The more certain offences tend to occur in the bosom of the family, in private: the more intolerable, the more injurious to the security of the private man (*) spies are; the more the upstanding man, who will not purchase the skills of such privileged hyenas, will be subjected to the malicious attacks of such self-interested, base souls, who - under the protection of the legal credibility accorded to their statements - will lie and slander all the more boldly when the matter itself is of such a nature that their assertions cannot be disproven by witnesses. Accusations that this or that person has led others into masturbation should only be considered when they come from the persons themselves who were seduced or abused, or from parents and guardians - teachers - pedagogues and caretakers of such young people who were seduced, but even their statements should not be accepted blindly.
 

(*) Montesquieu says quite superbly in the passage just quoted: "Quand un homme est fidele aux lois, il a satisfait ce qu'il doit au prince. Il faut au moins qu'il ait sa maison pour asyle, & le reste de sa conduite en suret*. -" "When a man is faithful to the laws, he has fulfilled his debt to the prince. He must have at least his home as a sanctuary; and the rest of his conduct must be protected."

 
 
 
 

[p. 51] It is well known how easily servants, out of hatred for comrades or other persons in the house, how even parents often abuse minor - ignorant children by placing false accusations in their mouths. Therefore, if a child has revealed something like that to a parent, then they must involve the teacher or another trusted person; and if the disclosure was first made to the teacher, then he must involve the parents or a fellow teacher or caretaker; and only if the child makes its statement uniformly and consistently before both - only then should the accusation of the seduced child be viewed as sufficient to justify a public inquiry against the accused party.

§ 36

In what cases masturbation might be punished due to the public nuisance alone.

Even if a masturbator does not seduce or abuse anyone else for the same unchastity, but rather it can be asserted by two voluntary and unsuspicious witnesses that they saw him practice this unchastity unabashedly before the eyes of other people: then he may be brought up for punishment because of the public nuisance provided thereby. It would be most appropriate, if it were ordered, that persons, who felt compelled to offer such testimony of their own accord - without secondary motives - and merely to prevent a public nuisance for
 
 
 
 

[p. 52] the youth, must first offer this testimony quietly to some worthy clergyman, who then must prevent the further evil by means of useful religious concepts or measures, or else make a report to the police with the necessary caution, who then in turn before anything else would have to hear and assess the testimony of the witnesses.

§ 37

Recommendations on how masturbatory offences should be punished.

It is absurd in general to speak of punishments merely as a form of redress for the public, or even for God above. Any punishment that imposes an evil for absolutely no other reason than to balance out an evil that the convict already committed is nonsense. This is especially true of police punishments, which are not imposed for actual crimes or injuries to the State and its citizens, but which are merely intended to prevent dire consequences. In this case, the improvement of the punished subject must always be the main objective. And although I am not exactly of the opinion that creating a deterrence for others should never be a consideration when imposing criminal punishments: nonetheless I believe that in the case of police punishments - which must be imposed anyway with the greatest possible protection of civil liberty,
 
 
 

[p. 53] honor, and security - no one at all should be subjected to severity simply in order to deter others from similar crimes; and consideration should also be given to improving the transgressor or, if this can no longer be effected, to ensuring that he is restricted as far as possible from being able to seduce others or provide a public nuisance. The primary consideration of the police in punishing a masturbator must therefore always be the following: How can I arrange it, what punishment shall I select, in order to take away this person's desire for such unnatural pleasures in the future, or at least to implant in him a reserve so that he does not seduce and infect others with his evil inclination.

§ 38

On the punishment of servants who seduce their employers' children for masturbation.

The most dangerous class of seducers toward masturbation are likely the servants who often - out of playfulness or lust - prematurely awaken the first stimulus toward this shameful vice in very tender children. This species of person, by whom domestic happiness is so very much endangered and so painfully injured: must undoubtedly be punished most severely. In this case, I think, that for the lustful drives with which such bodies are infused, the rod is one of the most
 
 
 

[p. 54] forceful means of improvement; just as I believe, on the other hand, that the performance of disgusting services for sickly, diseased bodies would be most likely to harden the senses against the luxurious impression that the sight or touch of naked people usually makes on such impudent creatures. Therefore, for servants referred for this crime, I would set as the punishment that the male or female criminal should receive before the court, and - if it could happen without too much furor and scandal - in the presence of the young person they seduced, a number of blows with the rod on the posterior(*), matching their age and physical constitution; and then should be sentenced for a quarter or a half a year, depending on the extent of their bad habit, to assist in the performance of all necessary activities for the most revolting patients at some hospital or military clinic. In order that such convicts
 

(*) In order that this punishment, aimed at preserving chastity and honor, should not offend against modesty in its own enforcement; and in order that the sight of the posterior of a female should not give rise to disgusting and filthy mockery by the court officers; or, if it were a young pretty girl, should not arouse the lustfulness of those present: all convicts should appear in pants of coarse or thin unbleached linen that would go from above their hips to below their ankles.

 
 

[p. 55] should not be confused with those persons who perform these activities for pay in such institutions - and would not like to be seen as convicts of this type: the convicts would have to put on a garment specially provided for them, which would also make it harder from them to escape from such places. Anyone who was subjected to this punishment a second time would have to be aware that he would be named expressly in a register printed publicly for the purpose, and parents who had children would be warned in this way against taking such persons into their service. Anyone who showed up for a third time as a convict of the sort, would have to be brought to a secure place of confinement, where - separated, if possible, from persons whom he could seduce - he could earn his keep for the State by means of some labor that, while severe, was not hazardous to life.

§ 39

Punishment of other persons who do not stand in any particular relationship to those seduced for masturbation or their parents.

Anyone who seduces to masturbation young people with whom he does not stand in such a relationship requiring special trust and honorableness, as servants have toward their employers: would be subjected the first time perhaps to a reasonable number of blows with a rod in the manner described above
 
 
 

[p. 56]; which punishment, depending on the circumstances, could be doubled or multiplied, and - in case of repetition of the offense, or if the perpetrator displayed a particular impudence, or had used wicked ways and means to attract good-natured young children to them - perhaps the same punishment as is imposed on servants.

§ 40

Punishment of parents, guardians, and pedagogues who seduced their children or pupils for masturbation.

Obviously, if parents, guardians, or teachers and pedagogues themselves seduced their children or pupils for masturbation, then this makes the punishment more severe. In addition to the punishment of blows with a rod, which should be intensified and repeated as much as possible, parents should lose all family and inheritance rights in relation to their children; and guardians, teachers, and pedagogues should be excluded for all time from any possible public offices of the kind and supervision of the moral conduct of their fellow citizens, and the chastisement, to be repeated at least twice or three times, should be performed in the presence of the abused or seduced wards and pupils.

§ 41

What alternative can be adopted in view of the punishment of persons from the higher classes who become guilty of seduction or abuse of others for masturbation.

If laws are to be effective, then no exceptions can be permitted. And a major reason why our
 
 
 

[p. 57] current criminal laws implemented against carnal crimes are so little effective is obviously: that these punishments cannot and may not be imposed against many persons who violate these laws; and among whole classes of citizens of the State things are laughed at as a gallantry that were quite recently punished in the lower classes of fellow citizens with fire and sword, and according to the wording of the laws are still supposed to be so punished. This is the necessary consequence of criminal laws that are too severe and are not fitting. Now, a portion of this severity is done away with already by the fact that, according to my system, these crimes are subjected to the less painful sword of the police. In the meantime, though, there may be no shortage of persons of both sexes who - despite their high status - were yet bestial enough to seduce young people as assistants or participants in masturbatory unchastity; and for whom the arm of the police - under our current constitution - might well be too weak to presume to enforce a tangible punishment on their posteriors. To let them go entirely unpunished for that reason would be very unpolitic and unjust. Where the principle applies that everyone who stands a handsbreadth higher that the normal citizen cannot be touched by the police:
 
 
 

[p. 58] there the police must be done away with entirely; in that case all plans for improvement of the police are mere nonsense, occupying idle brains for the sake of casting dust in the eyes. After all, when the police are supported with seriousness, they are capable of ensuring that every one, whether high or low, must obey the laws for preserving the cleanliness of the city and the street, and must submit to the punishments ordered for this purpose! Why then, if the sovereign is serious about preserving chastity and honor, should he not be able to grant his police the power to forbid and to prevent that anyone - regardless of his rank, class, or birth - should be allowed to stain - infect with his moral obscenities the purity of morals, the innocent youth of his fellow citizens with impunity. The issue here is simply the proper punishment. The criminal judge certainly cannot make distinctions of rank and class and birth for the sake of the punishment in cases when the nature of the crime knows no such distinction. He must see the count, the nobleman, the bourgeois, the peasant - when they stand before his bench as thieves, murderers, highway robbers, seducers, rapists - as nothing other than the criminal defendant,
 
 
 

[p. 59] the wanton disturber of public security: which must be granted to the wage-earner as much as to the minister of the State. The discretion of the police does not have such narrow limitations. As long as they do not let a criminal go entirely unpunished; as long as they do not institute exemptions of individuals that are not rooted in the nature of the offence: then their respect, their order does not suffer if they take specific account of each class of citizens in determining the type of punishment. A reasonable citizen is satisfied if the wife of the privy councillor, the wife of the president, receives only a written or verbal reprimand: where perhaps his own wife would have to wear the [iron] fiddle [around her neck] for the same crime. For the maintenance of the respect of the police, it is sufficient if only it is strictly enforced in general that even the poorest wife of a wage earner cannot be insulted and slandered with impunity. Modifications with respect to punishment can - must be left up to the discretion of the police. Thus even the most severe monarch in a European state would hardly be in a position to require - without great inconvenience and without allowing a large number of exceptions and creating a thousand bad consequences for the police judges - that
 
 
 

[p. 60] chastisement by the rod would be an inevitable punishment even for persons of the higher classes who became guilty of seduction to masturbation or of a public nuisance caused thereby. This is also not absolutely necessary to achieve the purpose, namely to prevent the further spread of this vice. Of course, mere monetary fines would be entirely ineffective in this case, since the higher - more wealthy - person does not feel them, and the common man would thus be led all too often to think that such things are punishable and forbidden only for the poor. But if, in order to awaken aversion - reserve - in the common man, one must use means that make a direct unpleasant impression on his senses, that cause a painful embarrassment: then in the case of persons of a more refined upbringing and education one can achieve this same effect by activating their pride - which is always more effective in the higher classes and can be injured by less violent means. Would it not therefore be convenient to order, in the case of persons on whom the rod could not be applied, that instead a monetary fine be imposed on them under the heading: for maintenance of the staff in hospitals and military clinics; and to post this
 
 
 

[p. 61] punishment, for a first offense, in the ordinary hospital or military clinic register, with express naming of the persons who had to pay the fine; and if the same persons were subject to this penalty a second time, then these persons would be named, along with the fines imposed on them, in the publicly printed table - in which, according to the above suggestion, servants who had been assigned to service in hospitals and military clinics as repeated masturbatory criminals would be identified? Of course, the police could not be bound by consideration for the position of the persons; rather, it must be impossible even for the police judge himself to make an exception; and also the demarcation of the classes benefiting from the exemption from the punishment by the rod would have to be justly, but precisely and definitely defined.
 
 




 

Chapter Two. On boy-defilement (sodomia sexus).
 
 
 

[p. 62]
§ 42

On sodomy in general

If one defines sodomy as any unnatural gratification of the drive toward procreation, then masturbation certainly does constitute a subtype of sodomy. And if one goes back to the etymological origin of this word, then there is no doubt that among the sins of luxury that were prevalent in Sodom, this vice of masturbation was also included. According to judicial practice in the meantime and according to the express wording of the Penal Code, sodomy is defined only as when a human being commits unchastity with an animal, or a man with a man, or a woman with a woman.

The latter, namely when copulation is performed with persons of the same sex, is called sodomia sexus.

§ 43

Can females commit sodomia sexus?

The question arises whether this offence, sodomia sexus, can also be committed by females
 
 
 
 
 

[p. 63] among themselves? Of course the Lex Carolina says so expressly: "woman with woman". Now, the commentators have racked their brains to figure out to what extent a woman can really commit sodomia sexus with a woman that would be as serious an offence against morality as boy-defilement, and for which, according to the sense of the Lex Carolina, the sentence of execution at the stake or at least by the sword could be imposed as in the case of sodomia sexus among males. For to say that any lustful, unchaste play between females should be punished by fire or sword: seemed to run counter to justice and to analogy, since in the case of males, the same sort of unchastity which is performed by masturbation and rubbing the genitals - assuming another person of the same sex is used for the purpose - is viewed only as a masturbatory offence, and is punished even in practice merely by beatings or some other arbitrary punishment, while only actual concubitus viri cum viro vel puero [cohabitation of a male with a male or boy] which occurs in specie cum immissione membri in nates [with insertion of the member into the buttocks] is viewed and punished as actual sodomia sexus. Many have had the idea that the meaning of the Lex Carolina is only applicable to hermaphrodites. However, Boehmer
 
 
 

[p. 64] rightly rejects this ridiculous opinion in his Commentary (*), and also finds that sola fricatio mulierum inter se [mere rubbing between women] does not belong here, quae tantum obscoenam impuritatem sapit [no matter how much obscene impurity it entails]. On the other hand, he attempts to rescue the sense of the Lex Carolina, by asserting that the case does belong here when concubitus inter mulieres per arma artificialia [cohabitation between females with artificial tools] is performed. However, I think that this alternative is not adequate, and that the most natural thing would be to assume that a woman cannot commit actual sodomia sexus with a woman: since it all, whether performed with artificial tools or not, merely comes down to unchaste play, in which the imagination plays a greater role than reality. Most likely, the author of the Lex Carolina was satisfied to use as a basis the theoretical concept of sodomia sexus used by other legislators before him - namely that it consisted of persons of the same sex committing unchastity with one another - without philosophizing about whether and to what extent this concept could be applied practically. We, who are not bound to the Lex Carolina, but rather see it as an outmoded garment that no longer fits, and
 

(*) In § 2 of his Commentarii ad Art. 116 C.C.C.

 
 

[p. 65] in general would not like to see this crime controlled by a penal code, but rather by an intelligent, careful morals police ordinance: we are all the less required to bother with the meaning of this passage in the Penal Code, and I believe I do not act incorrectly when I place all unnatural unchastity that women can commit with women under the chapter of masturbatory vices, and therefore treat only boy-defilement here under sodomia sexus.

§ 44

Why boy-defilement should be viewed as a particularly harmful type of unnatural unchastity.

Of course, in its essence, boy-defilement is not so very different from masturbatory sins for which one uses the presence and assistance of other persons of the male sex. Both are an unnatural form of lust, by which the body is weakened, the spirit is ennervated, and the inclination toward propagation by copulation with the other sex - this primary purpose of the existence of two sexes, and of the manifold pleasure associated with their carnal mingling - is gradually entirely weakened. In the meantime, the fact that most legal codes
 
 
 

[p. 66] have a special name for the sodomia sexus of men, which is called boy-defilement; while, on the other hand, no special legal name exists for the unchaste play among women; and also the fact that, among many nations that have punished the former vice, yet no such severe special punishments have been imposed either on these female offences, or on masturbatory impurities: these facts show that boy-defilement must always have been considered a form of unnatural lust that was particularly shameful and particularly harmful to the State. I believe, however, that one can point to very good reasons for this, and to a noticeable difference between these essentially similar offences of the male and female sexes. The greater is the illusion that is effected by the unnatural enjoyment of lust, the more completely it awakens the same physical stimulation that is provided by natural copulation; then the easier the human being can be seduced toward it, the harder it is to bring him away from it again, and the more dangerous such unchastity is for general morality. A woman can only procure the joys of copulation in a very imperfect manner with another woman. The thirst for lust is much rather heated up and nourished by unchaste embraces between a woman and a woman, than it is quenched and gratified. Therefore, lustful,
 
 
 

[p. 67] unchaste girls, regardless of such debaucheries, will always have a greater longing for the complete enjoyment of ordinary copulation, and will always be more likely to return to the path of Nature, than boy-defilers, about whom experience shows that they usually lose all inclination toward the opposite sex by the enjoyment of this unnatural lust. Also the number of boy-defilers usually far exceeds the number of girls and women who satisfy their lust in forced mutual embraces. In the female sex, it is usually - fear of pregnancy or pride, not wanting to make themselves contemptible among men, not wanting to expose themselves to every one - that is the source of the unnatural imitations of copulation, of the so-called finger sins unfortunately all too widely spreading among unmarried girls, and of the use of certain lustful instruments conceived by foreign shamelessness. The source of boy-defilement, on the other hand, frequently lies in an unlimited disgust, produced by excessive satiation from the enjoyment of natural pleasures. That is why one encounters so many grown and aged lechers of the type, whose status and situation are such that neither fear of punishment or scandal, nor lack of
 
 
 

[p. 68] opportunities for occasional copulation with girls and women are leading them away from the natural paths of gratification of the procreative drive. Therefore, sodomia sexus among men usually requires a much higher degree of moral depravity, a much worse character, than what one might call sodomia sexus among the female sex. Moreover, if one woman is supposed to play the role of a male for the other: then this still requires two more or less grown females, if the illusion is supposed to be at all satisfactory, and if the imagination is supposed to assist by physical heating of the nerves. Among the male sex, it is precisely the opposite. The boy-defiler needs an object who acts in an entirely passive manner. Therefore, he is satisfied with a very young, immature, underaged comrade: indeed, in order to increase the sensual titillation, he usually seeks out the youngest, prettiest boys as the victims of his infamous lusts. Therefore, what the State - the police, really - has to guard against in this crime, namely the seduction of other innocents, and the public nuisance arising from it, are much more serious and more frequent in the case of boy-defilement than in the sodomia sexus that can be committed by the female sex: where usually either both
 
 
 

[p. 69] persons indulge in this shameful play out of ignorance and innocence; or in the contrary case, at least both of the parties are at an age when the risk of seduction is smaller, and the avoidance of it can and may be left to themselves.

§ 45

To what extent the same procedure and punishment shall be used in the case of boy-defilement as in the case of masturbation.

By the way, if the prior practice of criminal law books and codes had not made this classification common, I would not have treated boy-defilement in a separate section, which in regard to its morality, its sources, and the measures for its future prevention is very homogenous with masturbation, but rather I would have dealt with it merely as a more serious, more harmful degree of that vice - for which, however, the punishments imposed for repetition of the crimes of masturbation could be imposed on the first offence. I am also convinced that - when our methods of pedagogy and other measures for moral education have reached only a moderate degree of perfection: and in addition, a solid, frequently repeated production of blows with the rod, imprisonment, and compulsion toward diligence and work, will do more to control this vice, will prevent it more effectively, and will be more useful and feasible, than fire and sword,
 
 
 

[p. 70] which can only have been selected as means of punishment for these offences in times of barbarism and superstition. That in this case as well only the seduced party or his parents, guardians, and caretakers should file charges, and otherwise the perpetrators should be arrested by the police only in the case of a public nuisance, is obvious from what I presented about the nature of these carnal offences in general, and in particular in the section on masturbation.