Die Widernatürliche Unzucht. Ein Beitrag zur Kritik des deutschen Strafrechts.
Inaugural Dissertation for the Doctorate in Law at the High Juridical Faculty of the Ruprecht Karl University of Heidelberg, submitted by Mathias Kohan-Bernstein.
[No date given. Published in 1909 according to the Jahrbuch fuer
Chapter I. Legal Theoretical Premises 7-13
Chapter II. Morality and Crimes against Morality 13-17
Chapter III. Unnatural Sexual Offense in General 17-27
Chapter IV. Homosexual Activity and Contrary Sexual Feeling 38-36
Chapter V. Conflict between the Current Views 36-64
§ 1. Metaphysical Views 38-46
§ 2. Moral Views 46-51
§ 3. Social Views 51-64
Chapter VI. Qualified Forms of Unnatural Sexual Offense 65-72
Literature and Sources 73-75
III. Unnatural Sexual Offense in General
What is designated as unnatural sexual offense, what types of sexual offense fall under this term, what actions are viewed as punishable because of their unnaturalness? - We believe we are able to answer these questions by way of a brief consideration of the factors that immediately precede current lawmaking and form an historical basis for it. If an historical tradition can almost always be demonstrated in the definition of the essence and scope of an offense, this is especially true in this case. Professor J. Kohler is correct when he states that "the punishment of unnatural sexual offense is in general a reminiscence from ancient times, to which namely Mosaic law and the remembrance of Sodom and Gomorra have contributed."1 We need not lose ourselves so far back in the gray mists of time. Anyway we do not intend to provide any history at all at this point2, and besides, modern legislation in the matter we are discussing is not based on Mosaic or even Roman law, but rather stands in an historical connection and direct imitation of other historical precedents that are much closer to our time.
Unnatural sexual offense, as it is encountered in modern legislation, is the legacy of two historical factors: canon criminal law and standard German criminal law. The former, by connection to Biblical tradition and Roman legislation of the imperial period, established the term and created a broadly understood definition, which practically served as a model for the standard German criminal law3; and the latter, while preserving the canonical definition of terms, in the active practice of centuries and in the general evolution of views in legislation and doctrine, came away from the original punitive severity and exceedingly wide understanding of the definition toward the restriction thereof and a significant mitigation of the punishment, so that the final results of the general legal development were able to find their place in the legislation of the 19th century in a little-changed form.
Unnatural sexual offense (sodomy in the widest sense) is understood as any satisfaction of the sexual drive not occurring by the normal union of the sex organs of man and woman: this view is arrived at simultaneously through study of the literature sources and determination of the constituent facts that fall under the term. Any attempt to narrow the limits of the definition, or perhaps to distinguish terminologically between contra-natural and un-natural sexual offense would suffer from internal contradictions and lead to a theoretically unjustified and arbitrary breakdown of the constituent facts.4
Quite in accordance with the given definition, canonical criminal law treats as unnatural sexual offense (flagitia contra naturam, sodomia generice) any satisfaction of the sexual drive in a way that "is opposed to the sexual union prescribed by nature."5 The reason for the punishment is religious-moralistic, and unnaturalness per se is always viewed as worthy of punishment: "Violatur quippe ipsa societas, que cum Deo nobis esse debet, cum eadem natura, cujus ipse auctor est, libidinis perversitate polluitur."6 Accordingly, everything that deviated from the natural way of satisfaction of the sexual drive was interpreted as constitutive of the crime, and as a result its limits were extended far beyond those of Roman law.
The following forms of sodomy were distinguished according to the doctrine: sodomia specifice, mollities, and bestialitas; in the first, in turn, various modalities were distinguished.7 The practice agreed with this view: for example, solitary masturbation, coprophagy, unnatural intercourse between persons of different sex (e.g. during menstruation, retro or in terga) - even between spouses -8 were mentioned as punishable; namely, all those actions that have disappeared from the current criminal code forever without a trace.
The standard German criminal law also understands as sodomy generally speaking any unnatural satisfaction of the sexual drive and initially deems all of its manifestations as absolutely worthy of punishment. Of course in the Lex Carolina only sodomia ratione sexus (same-sex intercourse) and sodomia ratione generis (bestiality) are threatened with punishment - namely death by fire - but standard German criminalists as well as regional legislators have viewed the material treated in Lex Carolina Art. 116 as neither complete nor binding. In addition to the constituent facts mentioned in canon law, the abuse of corpses and statues are expressly raised.9 The justifying grounds of punishment appear to be the unnaturalness per se, the violation of divine and natural laws, and this standpoint, which is once expressed by Carpzov in a classical fashion,10 remains typical and decisive for science and legislation during the entire period of the reign of common law.
The punishments are exceedingly harsh: in a significant number of cases punishment by burning and beheading are threatened. But already from Carpzov's time a reversal is noticeable regarding the punishable constituent facts and the extent of the punishment threatened. There is an attempt to restrict the constituent facts of sodomy, to punish mollities (masturbation) not so harshly and in general only arbitrarily, and a solution to the problem is found in that the completed offense is assumed only in cases of coitus contra naturae ordinem scienter susceptus11. This led of course to many intolerable situations from a theoretical standpoint (for example the notorious controversy regarding fulfillment of the offense in female-female intercourse), but in practical terms the goal was achieved. This divergent and milder treatment of some constituent facts cannot however be taken for evidence of a change of views regarding the concept of sodomy in common law doctrine: it was mainly negative standpoints and practical considerations that led to this change, but in principle the interpretation of unnatural sexual offense always remained the same.12
It was not the initiative of legislation, but the power of court practice that caused the application of the death penalty for sodomy to be gradually restricted and finally discontinued completely: at the dawn of the 19th century it does not occur anywhere on German soil.13 As regards solitary masturbation, unnatural heterosexual intercourse, and abuse of corpses and statues, only minor, and in practice ever rarer, punishments are threatened in this period; that is unless these constituent facts are judged not only as unnatural sexual offense but also because of the characteristics that they share with other carnal crimes or for particular reasons (like necrophilia, for example).
Nonetheless, there were definitely concessions to a newly arising cultural era, to the enlightenment revision of staunch centuries-old views and the general moderation of morals that went along with it. The juridical thinking of the enlightenment era seeks to tear itself away from theological-metaphysical thought processes and steer the science of criminal law toward the new tracks of a societal-juridical theory established with new methods. From now on, only violations of the real rights of the individual and the State will be viewed as actual crimes14; everything outside of this limit that does not appear to violate the law in this sense and merely endangers public morality or general police purposes, should be summarized as police offenses and should be prevented or mildly punished according to the circumstances by administrative rules and police laws.15 The division itself may perhaps appear unusable, but the underlying principle, albeit expressed at first in an unclear and defective manner, led to a significant and lasting advance in the field we are discussing; the view is becoming established that neither natural laws nor religious-moralistic commandments can be placed under penal protection, and that rather only the interests of human society can appear as a possible object of criminal law protection. Accordingly, science demands full exemption from criminal punishment for sodomy, which per se "attacks no one's rights"16; to the extent, however, that it like any simple sexual offense - causes public disturbance or is associated with moral or physical disadvantages for society, it may be prosecuted merely as a police offense.17
The importance of this view consists in the expulsion from the field of criminal law of that standpoint that differentiates natural and unnatural satisfaction of the sexual drive and sees in the latter a defining criminal trait worthy of punishment per se. From now on only general social and legal-political reasons will be decisive in assessing the worthiness of punishment of the respective constituent facts18 and only purposes proper to the law will be expressed in the statutes. In this way, legislation was shown its proper path; the fact that at that time among German states only Bavaria (Criminal Code 1813) and outside Germany only France (Code penal 1791) followed this path, could already no longer detract from the theoretical value of the new view.
We do not need to follow those insignificant fluctuations in details which German regional legislatures passed through in the course of the 19th century. The program of the enlightenment period remained unfulfilled and was reversed, the view of unnaturalness as grounds for punishment and qualification was upheld and expressed almost everywhere in the texts of laws.19 Nonetheless, the uniformity and immediacy of the old common law views, that draw from the idea of the punishability of unnaturalness all the consequences thereby demanded, is lacking. There could no longer be talk of handling all unnatural satisfaction of the sexual drive under criminal law. Even in cases where the wording of the law leaves broad discretion to practice, only a few fragments of all the constituent facts that meet the definition are actually punished. As regards the justifying grounds that encouraged legislators to maintain the punishment of unnatural sexual offense and a segment of the criminal law literature to defend such punishment, we are dealing here with a plethora of the most varied religious, moral, political, social, and health-related considerations, by aid of which the attempt is made to justify the necessity and inevitability of criminal prosecution by the state.20
The current German Criminal Code, in faithful reproduction of the corresponding Prussian law, designates male-male sexual intercourse as well as bestiality as the constituent facts of the offense. In this way, criminal prosecution of sodomia rationae sexus is limited to the male sex, and unnatural intercourse between women (tribadism) becomes exempt.21 Despite the objection of several appointed criminal law professors,22 who in the case of male-male intercourse see only coitus per anum (paedicatio, pederasty in the narrowest sense) and in the case of bestiality only the union of the sexual organs when the sex of the animal and the human being are different as the necessary objective constituent facts of the completed crime within the meaning of § 175, following the interpretation of the law by the Reich Court the existence of actions resembling coitus is necessary and sufficient in both cases.23
Already at the time of the creation of the Reich Criminal Code, there were not a few voices raised which considered the inclusion of criminal provisions against unnatural sexual offenses untenable; from a juridical standpoint, it was pointed out that no reason exists to continue to penalize unnatural sexual offense as a delictum sui generis, since it, along with natural sexual offense, is covered several times already in the law simply as sexual offense (e.g. § 174, § 176 Sec. 3, and especially § 183).24 The expert opinion of the Scientific Deputation for the Medical Field came to the same conclusion, declaring that no medical issues existed that would call for a specific criminal provision against unnatural sexual offense.25 These objections, however, did not fit with that time, in which there was a great fear that by getting rid of the punishment of unnatural sexual offense one would come into conflict with popular beliefs or even awaken the impression that vice was being sanctioned by law.26 Leaving aside C.H. Ulrichs, who developed a vigorous propaganda for repeal of the punishment of same-sex intercourse during the 60's and 70's, without by the way receiving any consideration or response in juridical circles, the issue of unnatural sexual offense is first raised again in the science of criminal law with the appearance of v. Krafft-Ebing and the Vienna school of psychiatry. This is not true for bestiality, which, due to the rarity of its occurrence and its localization in the culturally lowest strata of the population, was much less likely to call attention to itself, but rather same-sex intercourse took center stage and became the subject of the most painstaking study and at the same time of a bitter controversy. The new standpoints did not arise from the soil of jurisprudence, and had nothing in common with the legal-theoretical arguments. It was psychiatry that, based on its studies of the sexual drive, its manifestations and its aberrations, sought to put in question the reliability of a moral and legal evaluation of same-sex intercourse in a large number of the cases, since according to its findings this was much rather an inevitable consequence of a physical and psychological constitution or hereditary morbid disposition of the affected person. Already Casper (Ueber Notzucht und Päderastie und deren Ermittelung seitens des Gerichtsarztes [On Rape and Pederasty and their Investigation by Forensic Medicine], Vierteljahresschrift für gerichtliche und öffentliche Medizin, 1852) had put forth the hypothesis after repeated observations of so-called pederasts that in many cases this was not an arbitrary choice of means for excitement and lust, but a peculiar innate orientation. The famous psychiatrist Westphal followed him (Die konträre Sexualempfindung, Archiv für Psychiatrie und Nervenkrankheiten, 1870), likewise attributing same-sex intercourse to an innate morbid orientation, and was the first to use and elaborate the designation and term contrary sexual feeling for it.27 But it was Krafft-Ebing's arguments that first succeeded in establishing a validity for the new thoughts and standpoints in such a way that even the science of criminal law had to pay attention. Until then, one had viewed, as the motivations for the offense, only a lascivious demeanor, "moral idiocy" of the perpetrator, which in connection with defective intelligence or a surfeit of normal cravings would lead to homosexual intercourse; but when v. Krafft-Ebing, using a wealth of clinical material with persuasive evidentiary power, was able to draw corresponding conclusions from his research and advocated vehemently for the exculpation of contrary-sexuals, indeed for the repeal of the criminal provisions, when at the same time as he, and independently from him, a number of German and foreign psychiatrists devoted thorough studies to the question of the perverse sexual drive and even lay circles were drawn into the public discussion of the psychiatric problems and criminal law reform proposals, there resulted even for the representatives of the science of criminal law the necessity of taking a position regarding the movement that was shaking the well-established view and of considering the possible consequences in forensic and legislative respects. The psychiatric literature and the medical standpoints so dominated the field at this time that juridical opponents and defenders of § 175 who dealt specifically with the issue were forced to take into account in their discussions all trends and directions in psychiatry and to pay exclusive attention to the issue of sexual inversions, so that the legal-theoretical approach was shunted into the background. It was sometimes overlooked that, for all the importance of the results of the psychiatric studies - ruling out the scarcely possible assertion, not even requiring refutation, that all homosexual activity is attributable to contrary sexual feeling -, these results could only lay claim to consideration in court practice, and from a legislative standpoint appeared relevant not so much for § 175 as for § 51 of the Criminal Code, with regard to the issue of considering so-called diminished accountability under the law. For no matter how high one may consider the number of contrary-sexuals to be, there still remains a considerable cohort - an overwhelming majority in some people's opinion28 who commit same-sex intercourse in spite of a normal heterosexual drive. With regard to this group, the psychiatric standpoint cannot be applied and here purely juridical considerations should gain ground, which from a legislative standpoint are solely decisive with regard to the issue of § 175.29 And the same insight is well justified with regard to bestiality, which, according to the widespread opinion even among psychiatrists, can be attributed to a perverse sexual drive only in a small number of cases.30 Nonetheless, it redounds to the lasting credit of psychiatry that it was first to critically illuminate this area as well, and that, by introducing the natural-science method of recognizing psychological and physiological processes in the sexual aberrations, it indirectly pulled the rug out from underneath many metaphysical-theological and moral prejudices.
1 Ueber den Begriff der Unzucht mit sffentlichem Aergernis [On the Concept of Sexual Offense with Public Disturbance] in GoldtArch. 45, 1897, p. 203.
2 For a historical orientation in the matter of the punishment of u.s.o., reference can be made to Numa Praetorius, Strafrechtliche Bestimmungen [Criminal Laws] in Jahrbuch für sexuelle Zwischenstufen, Volume 1, 1899, pp. 97 ff., Wachenfeld, Homosexualität und Strafgesetz [Homosexuality and the Criminal Code], 1901, pp. 8-39 (both with particular consideration of same-sex intercourse), and v. Wächter, Abhandlungen aus dem Strafrecht [Essays on Criminal Law] 1, 1835, pp. 173 ff.
3 See on this v. Wächter, ibid., pp. 176 and 188.
4 The distinction between contra-natural and un-natural sexual offense is encountered in Villnow, Verbrechen und Vergehen wider die Sittlichkeit, Gerichtssaal 30, 1878, p. 134; Wachenfeld, ibid., pp. 43 f., and H. Hälschner, Das gemeine deutsche Strafrecht 2, Abt. 1, 1884, p. 238, and occurs in apparent imitation of the distinction made in canon and common law between sodomia propria and inpropria. Meanwhile it is overlooked that this was not a fundamental exclusion of constitutent facts not matching the term, but only a classification of different types and subtypes of unnatural sexual offense under the same generic term. See for example Schmalzgrueber, Crimen fori eccleciastici, T. 1, 1727, Tit. 16 No. 112; Carpzov, Practica nova 1739 Qu. 76 No. 9; v. WSchter, Lehrbuch des Römisch-Teutschen Strafrechts 2, 1826, p. 575.
5 E. Katz, Grundriss des kanonischen Strafrechts, 1881, p. 118; likewise Hinschius, System des kanonischen Kirchenrechts 5, 1895, p. 821; see also Weisbrod, Sittlichkeitsverbrechen vor dem Gesetz, 1891, p. 87.
6 c. XIII, C. 32 qu. 7 (editio Friedberg, 1879).
7 See Schmalzgrueber, ibid., T. XVI No. 112: "Quaeritur quotuplicis generis sit peccatum contra naturam? est triplicis maxime generis, videlicet Sodomia, Mollities et Bestialitas. Sodomia aliquanto accipitur generice, prout omnem libidinem contra naturam."
8 These data taken from E. Katz, ibid. pp. 118-120.
9 See on this v. Wächter, ibid., p. 202 on the older Saxon law, especially the so-called special constitutions. Also Boehmer, Meditationes 1774 ad Art. 116 § 2: "si cum cadavere mortuo genitalia miscent, genitalia in figura vel statua abutuntur."
10 Ibid., qu. 76 No. 2: "... sodomiticum peccatum, spretis naturae legibus, ipsam naturam violat, humanae sobolis propagationem impedit, fidei Christianae maculam fere non extinguendam inurit, et ex Christianis filios diffidentiae facit."
11 Boehmer, ibid., ad Art. 116 § 1.
12 See Boehmer, Observationes selectae ad B. Carpzovii practicam novam 1759, ad Qu. 76 obs. 2: "... rectius dicitur coitus contra naturae ordinem. Sic enim satis ab alia quavis spurcitie, quae sine congressus suscipitur, etsi naturae refragetur, differt; qualis est fricatio, vel manustupratio."
13 See Tittmann, Handbuch der Strafrechtswissenschaft 2, 1823, 2nd edition, p. 665; v. Wächter, Abhandlungen, p. 189.
14 See J. Cella, Ueber Verbrechen und Strafe in Unzuchtsfallen [On Crime and Punishment in Sexual Offense Cases], 1787, p. 15; A. Feuerbach, Lehrbuch des peinlichen Rechts (Textbook of Criminal Law], 1808, pp. 24 and 400.
15 See Cella, ibid., p. 23; Feuerbach, ibid., p. 24.
16 Cella, ibid. p. 27.
17 Feuerbach, ibid., p. 416; Cella, ibid., p. 37. - Unfortunately we must refrain from discussing the new criminal and social-political thinking, whose herald is Beccaria, Von den Verbrechen und Strafen [On Crimes and Punishments] (German translation, 1767), pp. 57 ff., 149, who was followed with regard to "carnal crimes" by Cella, ibid., pp. 31, 52, 69ff., and Tittmann, ibid., p. 613.
18 Of course, even then all the arguments were brought up that still until today have dominated science and legislation: one speaks of the great degree of depravity of the perpetrators, of the contempt for marriage, of depopulation, weakening and dissolution (!) of the power of the state, of physical and moral ennervation of the citizenry (see A. Feuerbach, ibid., p. 416; K. v. Grolman, Grundsätze der Kriminalrechtswissenschaft, 1825, p. 413); but these arguments are amenable to scientific discussion and critique since they operate with real, calculable variables.
19 See N. Praetorius, ibid., p. 134. Only Württemberg as of 1839, Hannover as of 1840, and Braunschweig as of 1840 follow the example of Bavaria and leave unnatural sexual offense essentially without punishment. Ibid. pp. 131 ff.
20 An assessment of all these arguments will be made elsewhere in Chapter V of our work.
21 § 175 of the German Criminal Code says namely: "Unnatural sexual offense committed between persons of the male sex or by human beings with animals shall be punished with imprisonment; loss of civil rights can also be imposed." In contrast, the Austrian Criminal Code leaves the constituent facts of the Lex Carolina essentially untouched (§ 129 Criminal Code): "The following type of sexual offense are also punished as crimes: I. Sexual offense against nature, that is a) with animals; b) with persons of the same sex."
22 For example v. Liszt, Lehrbuch des deutschen Strafrechts, 1903, p. 386; Binding, Lehrbuch des gemeinen deutschen Strafrehcts, besonderer Teil, 1, 1902, p. 204.
23 On male-male intercourse, see Entscheid. des Reichgerichts 1 p. 395; 6 p. 211; in volume 36 p. 32 it is said, among other things: "Resemblance of coitus between males can be assumed only when one male has touched the body of the other with the male member in a use of the member resembling coitus." Accordingly, coitus per anum [anal], per os [oral], inter femora [between the thighs], and the like are subject to the law, but not mutual manustupration [masturbation]; regarding the arbitrariness of such a limitation of the constituent facts, see Anonymous "§ 175 Strafgesetzbuch und die Urningsliebe" ["§ 175 of the Criminal Code and Homosexual Love"] in Zeitschrift für die gesamte Strafrechtswissenschaft 12, 1892, pp. 37f., who - with the exception of paedicatio - sees no essential difference between mutual manustupration and other just mentioned types of same-sex intercourse, which can all be viewed as manifestations of mutual masturbation. In this sense, the Austrian practice that penalizes all mutual masturbation - including mutual manustupration - is perhaps more consistent (see A. Finger, Oesterreichisches Strafrecht 2, 1895, p. 359). - Regarding bestiality, see RG 3 p. 320; 23 pp. 289ff.: for the completion of the offense, the union of the sexual organs and the difference in sex are definitely not required.
24 For example Dalcke, GoltdArch. 17, 1869, pp. 82, 88ff.; Prof. Sonntag, GoltdArch. 18, 1870, pp. 23ff.; see also H. Hälschner, ibid., p. 239.
25 See Appendix 3 to the Motive des Strafgesetzentwurfs für den Norddeutschen Bund [reasons for the draft criminal code for the North German League], pp. 30f.
26 See Motive zu dem Entwurfe 1869, p. 150; also the accompanying letter by State and Culture Minister v. Mühler on the expert opinion of the Scientific Deputation, provided in Appendx 3 in the Sammlung sämtlicher Drucksachen des Reichstags des Norddeutschen Bundes 1, 1870.
27 See in this regard A. Moll, Die konträre Sexualempfindung, 1899, pp. 84, 87; also H. Ellis and J.A. Symonds, Das konträre Geschlechtsgefühl, 1896, pp. 26ff.
28 See Wachenfeld, ibid. pp. 84f.; the same author in GoltdArch 49, 1903, p. 40; see also L. Halban (Blumenctock) in the Realencyklopädie der gesamten Heilkunde 5, 1895, p. 184, who says: "for even if it is to be assumed that the number of those handicapped with contrary sexual feeling is much larger than the small number of cases described so far gives reason to suppose ..., it is still insignificantly small compared to the large number of pederasts."
29 In this regard, Schaefer, Vierteljahresschrift für gerichtliche Medizin 17, 1899, p. 291 remarks correctly: "One must first of all distinguish purely immoral connections for those acts from any constitutionally motivated commissions. As long as it cannot be asserted that the former do not occur at all, ... it remains only a legal question whether those actions should remain under penalty or not."
30 See in this regard L. Halbans, ibid., p. 184; A. Cramer, Gerichtliche
Psychiatrie, 1900, p. 284; A. Forel, Die sexuelle Frage, 1905, p. 260.