THE laws in force against what are called unnatural offences derive from an edict of Justinian, A.D. 538. The Emperor treated these offences as criminal, on the ground that they brought plagues, famines, earthquakes, and the destruction of whole cities, together with their inhabitants, upon the nations who tolerated them.
A belief that sexual inversion is a crime against God, nature, and the State pervades all subsequent legislation on the subject. This belief rests on (1) theological conceptions derived from the Scriptures; (2) a dread of decreasing the population; (3) the antipathy of the majority for the tastes of the minority; (4) the vulgar error that antiphysical desires are invariably voluntary, and the result either of inordinate lust or of satiated appetites.
Scientific investigation has proved in recent years that a very large proportion of persons in whom abnormal
sexual inclinations are manifested possess them from their earliest childhood, that they cannot divert them into normal channels, and that they are powerless to get rid of them. In these cases, then, legislation is interfering with the liberty of individuals, under a certain misconception regarding the nature of their offense.
Those who support the present laws are therefore bound to prove that the coercion, punishment, and defamation of such persons are justified either (1) by any injury which these persons suffer in health of body or mind, or (2) by any serious danger arising from them to the social organism.
Experience, confirmed by scientific observation, proves that the temperate indulgence of abnormal sexuality is no more injurious to the individual than a similar indulgence of normal sexuality.
In the present state of over-population, it is not to be apprehended that a small minority of men exercising sterile and abnormal sexual inclinations should seriously injure society by limiting the increase of the human race.
Legislation does not interfere with various forms of sterile intercourse between men and women: (1) prostitution, (2) cohabitation in marriage during the period of pregnancy, (3) artificial precautions against impregnation,
and (4) some abnormal modes of congress with the consent of the female. It is therefore in an illogical position, when it interferes with the action of those who are naturally sterile, on the ground of maintaining the numerical standard of the population.
The danger that unnatural vices, if tolerated by the law, would increase until whole nations acquired them, does not seem to be formidable. The position of women in our civilisation renders sexual relations among us occidentals different from those of any country--ancient Greece and Rome, modern Turkey and Persia--where antiphysical habits have hitherto become endemic.
In modern France, since the promulgation of the Code Napoleon, sexual inversion has been tolerated under the same restrictions as normal sexuality. That is to say, violence and outrages to public decency are punished, and minors are protected, but adults are allowed to dispose as they like of their own persons. The experience of nearly a century shows that in France, where sexual inversion is not criminal Per se, there has been no extension of it through society. Competent observers, like agents of police, declare that London, in spite of our penal legislation, is no less notorious for abnormal vice than Paris.
Italy, by the Penal Code of 1889, adopted the principles of the Code Napoleon on this point. It would be interesting to know what led to this alteration of the
[paragraph continues] Italian law. But it cannot be supposed that the results of the Code Napoleon in France were not fully considered.
The severity of the English statutes render them almost incapable of being put in force. In consequence of this the law is not unfrequently evaded, and crimes are winked at.
At the same time our laws encourage blackmailing upon false accusation; and the presumed evasion of their execution places from time to time a vile weapon in the hands of unscrupulous politicians, to attack the Government in office. Examples: the Dublin Castle Scandals of 1884, the Cleveland Street Scandals of 1889.
Those who hold that our penal laws are required by the interests of society must turn their attention to the higher education. This still rests on the study of the Greek and Latin classics, a literature impregnated with pæderastia. It is carried on at public schools, where young men are kept apart from females, and where homo-sexual vices are frequent. The best minds of our youth are therefore exposed to the influences of a pæderastic literature at the same time that they acquire the knowledge and experience of unnatural practices. Nor is any trouble taken to correct these adverse influences by physiological instruction in the laws of sex.
The points suggested for consideration are whether England is still justified in restricting the freedom of adult persons, and rendering certain abnormal forms of sexuality criminal, by any real dangers to society: after it has been shown (1) that abnormal inclinations are congenital, natural, and ineradicable in a large percentage of individuals; (2) that we tolerate sterile intercourse of various types between the two sexes; (3) that our legislation has not suppressed the immorality in question; (4) that the operation of the Code Napoleon for nearly a century has not increased this immorality in France; (5) that Italy, with the experience of the Code Napoleon to guide her, adopted its principles in 1889; (6) that the English penalties are rarely inflicted to their full extent; (7) that their existence encourages blackmailing, and their non-enforcement gives occasion for base political agitation; (8) that our higher education is in open contradiction to the spirit of our laws. 1
135:1 It may not he superfluous to recapitulate the main points of English legislation on this topic. (1) Sodomy is a felony, defined as the carnal knowledge (per anum) of any man or of any woman by a male person; punishable with penal servitude for life as a maximum, for ten years as a minimum. (2) The attempt to commit sodomy is punishable with ten years' penal servitude as a maximum. (3) The commission, in public or private, by any male person with another male person, of "any act of gross indecency," is punishable with two years' imprisonment and hard labour."