Karl Maria Kertbeny [aka Karl Maria Benkert]
§ 143 des Preussischen Strafgesetzbuches vom 14. April 1851 und
seine Aufrecherhaltung als § 152 im Entwurfe eines Strafgesetzbuches
fuer den Norddeutschen Bund
[Section 143 of the Prussian Penal Code of April 14, 1851 and its Retention as Section 152 in the Draft of a Penal Code for the North German Confederation]
Open, expert scientific letter to His Excellency Dr. Leonhardt, Royal Prussian State and Justice Minister
[Published with introductory material in the Jahrbuch fuer sexuelle
Zwischenstufen (Leipzig), Vol. 7 (1905), No. 1, pp. I-IV, 1-66.]
Publisher's Preface [in the Jahrbuch fuer sexuelle Zwischenstufen]
In compliance with the request of a senior justice official and several old friends of our movement, we are offering in this place the open letter, addressed at the time by an anonymous author in 1869 to the then Justice Minister Leonhardt, when the issue at hand was whether the Prussian paragraph on Uranians [Karl Ulrich's invented term for homosexuals] should be included in the then promised new Penal Code for the North German Confederation (which later became the National Penal Code [Reichsstrafgesetzbuch] and is still in force).
The document, which for a long time was lost and unavailable, is viewed by knowledgeable persons as one of the best works about the homosexual problem and indeed it contains a plethora of viewpoints that are just as worthy of our attention today, when we are once again considering a revision of our penal code, as they were 36 years ago.
Professor Karsch informs us, concerning the author, that he is one and the same as the writer K. M. Kertbeny. Karsch owes this information to the writer Karl Egells who died in December 1904 (see annual report for this volume), who received the information from Ulrichs. "In one of his last letters to Egells, from Aquila, May 10, 1884,"--we are quoting Karsch's note to us--"Ulrichs writes, namely: 'Yes, Kertbeny was the anonymous author.' Although, "Section 143" is not expressly mentioned in this letter, it is nonetheless the only possible document that could be meant, because Ulrichs relates that Kertbeny had, out of jealousy, refused to use his (Ulrichs's) terms, but rather invented his own, such as homosexual instead of Uranian; he further states that he maintained a long correspondence with Kertbeny; he also intended to let Egells know how he found out that the author of that anonymous document was none other than Kertbeny, that is, it was not from Kertbeny himself. (Unfortunately, I cannot find this report; maybe he never got around to it.) It was only in a later letter to Egells, dated May 21, 1884, that Ulrichs directly identified Kertbeny as the author of "Section 143"; he says he got to know him in 1864 or 1865 as one of the first 'comrades'."
Professor Karsch plans to publish the letters from Ulrichs to Egells, of which he obtained possession, and "which contain much of interest and reveal the entire way of thinking and activity of the apostle of Uranians," and on this occasion he will discuss the identification of the author of "Section 143" as Kertbeny.
As Ulrichs states, Kertbeny was also a source for Gustav Jaeger.
Of Kertbeny's writings, John Henry Mackay provided us with "Silhouettes
and Relics" I and II (Vienna 1861), as well as "Petofi's Death 30 Years
Ago in 1849, Jokai's Remembrances of Petofi in 1879".
 Silhouetten und Reliquien. Erinnerungen an Albach, Bettina, Count Louis, und Casimir Batthyanyl, Bem, Beranger, Delaroche, Haynan, Heine, Petob, Schroeder-Devrient, Szechenyl, Varnhagen, Zschokke, usw. von K.M. Kertbeny, Vienna and Prag, Kober und Markgraf, 1861.
 Petofis Tod vor 30 Jahren 1849. Jokais Erinnerungen an Petofi 1879. Historisch-literarische Daten und Enthuellungen, bibliographische Nachweise. Zusammengestellt von K.M. Kertbeny. Mit einem Plan der Schlacht von Schassburg. Leipzig, Wilhelm Friedrich, 1880.
In Volume II of the "Silhouettes", I found, among the remembrances of Heinrich Heine, a conversation about Platen that Kertbeny had with Heine in Paris.
It may well be worthwhile to dig out this passage as well, because it shows in characteristic fashion what misdeeds the false understanding of homosexuality was misused for at the time and is still misused for today.
From "Silhouettes and Relics" by K.M. Kertbeny
"Heinrich Heine", page 235.
"Sitting before the fireplace, we chatted about all sorts of things,
the details of which I can no longer recall. I only know that I told him
that I had met the Frizzoni brothers in Bergamo, and heard all kinds of
details about Platen, and finally I asked him: "Tell me honestly, do you
really not consider Platen a poet? And are you aware that the man died
of your scorn?" - "Of course I consider him a poet," Heine said, "and a
very significant, albeit inwardly cold, one; he was a poet in the Greek
sense, whose poetry consisted not in sentiment, but in a inner musical
sense, a mathematical sense for music." - "Why did you do him injustice
with such full awareness?" - "Well, you see," Heine replied, smiling impishly,
"I was just coming up at that time, and my entire intellectual being is
such that it would have had to call forth a resounding opposition; I felt
that in advance, and especially my calfs would not be able to escape all
the little yelping critics. I wanted to take precaution against that, and
so I chose the greatest among them, flayed him, like Apollo did Marsyas,
and dragged this giant right along with me onto the stage, so that the
smaller ones would lose heart. That is just a part of a literary campaign.
And then the guy really was halfway a fool, at least as a human being;
he strolled around Munich wearing a laurel wreath, I saw that with my own
eyes. Also" - and here Heine hesitated a bit - "he was terribly arrogant;
I told him several times that he should not call me a Jew, that I was not
one, at least not the way he meant it, but he was as stubborn as Don Quixote,
so then I called him a ...... and finally he stabbed himself like a scorpion."
Discussion of penal issues from the field of forensic medicine. An appendix to the motives of the Draft Penal Code for the North German Confederation. (Berlin, 1869, publication of the Royal Privy High Court Book Printing Company, R. von Decker) small folio, 36 pages.
1) Accountability - 2) Diminished accountability - 3) Age level for criminal punishability - 4) Unchastity contrary to nature - 5) Abuse of young people - 6) Errors of art by physicians - 7) Definition of the term "Poison" - 8) Shoddy medical work - 9) Denial of medical assistance - 10) Public announcement of quack medicine - 11) Thefts of corpses - 12) Bodily injuries - 13) Offering and sale of trichiniferous meat
August 12, 1868
Leonhardt to the Royal State Minister and Minister of Religious, Instructional, and Medical Issues, Dr. von Muehler. Excellency.
IV. Section 143 of the Prussian Penal Code determines "Unchastity contrary to nature exercised between persons of the male sex or by human beings on animals shall be punished..."
The punishment imposed for unchastity between human beings and animals is essentially based on an earlier assumption that such a combination might be fertile and could generate bastard species between humans and animals. As far as is known, modern science has disproved this assumption; and more recent legislations, such as the French, Bavarian, Belgian, and the draft of an Austrian Penal Code published in the last year did not include the unchastity mentioned in Section 143 in the number of criminally punishable acts.
The motives for the Austrian Penal Code mentioned as a justification for that: that it could not be ascertained why the acts of unchastity addressed here should in particular be subject to punishment as crimes, even if one might view them, according to their quality, as unchaste or, according to their general action, as unhealthy acts. There are a whole series of other unnatural or anti-natural acts of unchastity, whether between persons of the same sex, or between persons of different sex, that are just as immoral and had just as detrimental affects on health, but that were not subject to punishment.
In the motives for the Prussian Penal Code (of 1851), on the other hand, the following is presented as a justification for Section 143: the acts subjected to punishment herein reveal such a great degeneration and degradation of the human being and are so dangerous for morality that the Penal Code must address them. The new (North German) Penal Code will therefore have to decide:
a) whether in imitation of the aforementioned legislations it will discontinue
Section 143 entirely, or perhaps
b) restrict the punishment of base unchastity to that exercised between persons of the male sex.
The impending decision will depend on, among other things, how medical science judges those acts of unchastity, and therefore an expert opinion from a medical standpoint is desirable regarding the questions posed under (a) and (b).
V. Section 144, No. 3, with persons under 14 years of age. Could one
go down to 12 years of age?
April 12, 1869
Muehler to the Royal State and Justice Minister Dr. Leonhardt, Excellency.
-- with regard only to No. IV of the opinion, I for my part find it
worth recalling that it appears to me inadmissible not to subject sodomitery
and pederasty to punishment even when they are carried out openly. I consider
the justification of the punishment, as given in the motives for Section
143 of the Penal Code of April 14, 1851, to be well-grounded even in the
face of the expert opinion of the Scientific Deputation.
As for the other points, I see no objections to adopting the recommendations.
Expert Opinion of the Royal Scientific Deputation for Medicine, Berlin, March 24, 1869.
Dr. O. Lehnert, Second Physician of St. Elisabeth Hospital, Koenigsgraetzerstrasse 126, Il.
Dr. W. v. Horn, Privy Senior Medical Counsellor, Unterbaumstrasse 7,
Dr. B. v. Langenbek, Privy Senior Medical Counsellor, University Professor, etc., Sommerstrasse 4,
Dr. C. Housselle, Privy Senior Medical Counsellor, Presenting Counsellor in the Ministry of Culture, Krausenstrasse 89,
H. Martin, Privy Medical Counsellor and Professor, Dorotheenstrasse 5,
Dr. Rudolf Virchow, Professor, Schellingstrasse 10,
A.W. Hoffmann, Professor of Chemistry, Member of the Academy, Dorotheenstrasse 10,
Dr. Bandeleben, Privy Medical Counsellor, Ordinary University Professor, Director of the Surgery Clinic at the Charite Hospital, Schiffbauerdamm 18,
C. Skrzeczka, Practical Physician, Professor, Forensic Physician, Linksstrasse 14.
We have been asked to formulate an expert opinion as to how medical science assesses these cases of unchastity.
First of all, as far as unchastity of humans with animals is concerned, the penal provision directed against it is supposedly based on the earlier assumption that such miscegenation would be fertile, and could produce bastard species between humans and animals. This view arose in earlier times due to a totally incorrect understanding of so-called monsters, that is, misshapen human offspring, in which it was believed, not without considerable help from the imagination, that one could recognize in some abnormally formed body part or other a similarity with corresponding body parts of an animal. This led to the notion that such an offspring had a half-human, half-animal form, and to the conclusion that it was the product of the sexual mixing of a human being with an animal. Since then, science has long ago shown that so-called monsters come about due to morbid development of the offspring or to the retardation of the development of certain body parts. On the other hand, it has left no doubt about the fact that a fertile mixing of humans and animals is impossible. If the fundamental grounds for the respective penal provision consequently fall away, other reasons for retaining it cannot be brought from a medical standpoint, either.
The cases of unchastity with animals are very rare anyway, and usually concern only farm hands, shepherds, etc. who have a very low level of education and who, living much with the animals, are led to an unnatural manner of gratifying the sexual drive due to loneliness and boredom. It cannot be asserted that this leads to any health disadvantage for them. This could happen only due to frequent practice of that act, and then the act would have a similar effect to masturbation. The latter must be deemed an incomparably more dangerous vice, and given the spread that it has attained so far, unchastity with animals must be considered hardly worthy of attention compared to it.
More important in any case is unchastity among persons of male sex, and specifically in this crime(?) it must be considered that this unchastity is closely(?) related to the acts considered in Section 144 (persons under 14 years) of the Prussian Penal Code.
The motive for the punishment imposed for unchastity among persons of male sex, as provided in the Prussian Penal Code, is that it "reveals such a great degeneration and degradation of the human being, and is so dangerous for morality, that it cannot go unpunished." On the other hand, the draft of the Austrian Penal Code does not impose a punishment for the acts under consideration, and argues in its motives that this specific form of unchastity cannot be distinguished from other ones that have not been threatened with punishment to date, whether these are viewed, according to their quality, as unchaste or as health-threatening acts. In relation to the latter point, medical science can raise no objection, and namely, if the Royal Superior Court, in various decisions, has not deemed mutual manustupration between men to be unchastity between persons of the male sex, then we have to agree fully with the view in the Austrian draft. In regard to health, that form of masturbation alone might be of some concern, while an imitation of coitus carried out between male persons, aside from any local injuries that might occur, can, like normal coitus, essentially become harmful only in excess.
A judgment of whether there exists, in unchastity practiced between persons of the male sex, a particular degradation of the human being and a particular immorality compared to other types of unchastity, that are repulsively carried out between men and women, or mutually between women, as is known, hardly lies within the competence of the medical expert.
Accordingly, we are in no position to offer any reasons why unchastity with animals or between persons of the male sex should be subject to punishment while other types of unchastity are ignored by criminal laws.
Finally, we leave it to others to consider whether the potential repeal of Section 143 might have an impact on the wording of Section 146 (professional unchastity) of the Prussian Penal Code.
Motives for the Draft of a Penal Code for the North German Confederation, Berlin, in July 1869 (Publication of the Royal Prussian Privy High Court Book Printing Company by R. v. Decker. Univ. folio.)
Upholds the punishment set on sodomy and pederasty in the Prussian Penal Code (Section 143). For even if the repeal of that penal provision can be justified from a medical standpoint, as well as by many reasons drawn from theories of criminal law, the legal consciousness of the nation judges these acts not only as a vice, but as a crime, and the legislator may well have reservations about going against this and declaring acts to be exempt from punishment that are fortunately deemed by public opinion to be worthy of punishment. To remove from civil criminal law the condemnation of such persons that have sinned in this way against natural law, and to entrust it to the moral law, would undoubtedly be criticized as a mistake of the legislator, and therefore the draft did not believe that it could follow the practice of other legislations in this case.
Section 143 of the Prussian Penal Code of April 14, 1851 and its Retention as Section 152 in the Draft of a Penal Code for the North German Confederation
Open, expert scientific letter to His Excellency Dr. Leonhardt, Royal
Prussian State and Justice Minister
For all time, and among all nations that can be counted as culture-bearing, there have been natures who were always dissatisfied with the status quo, who were filled with ideal conceptions, who all gravitated toward the possibility that better and purer conditions might be introduced among human beings, either in this world, or in its continuation in the next. In order to achieve the former, the theory of crimes and punishments was worked out, both of which could only be derived from the social contract, and could therefore never have any justification beyond that of being means for discipline; and with respect to the afterlife the dark feeling of a need for faith among the people was furnished with certain personal conceptions, these conceptions were lent the attributes of absolute justice and absolute wisdom, and any opposition, even merely intellectual opposition, to such fictive commands was declared to be a sin, and all consequent conditions of the first supposed misstep were declared to be original sin, the concept of which must of course lead in the end to the blasphemous concept of predestination. Thus European humanity, after the bright-thinking days of Hellenism, and the thoroughly realistic days of Roman rule, went through well over fifteen hundred years of the most bizarre spiritualistic conceptual confusion, like so and so many intellectual intoxications and displays of logical unaccountability, sacrificed millions and millions of their brothers to the most insane religious, moral, legal, social, and statist fanaticism and its doctrines, and attempted to strangle all healthy reason already in the seed.
Happily, however, the victory of healthy reason is an unalterable natural law; it can be temporarily inhibited, to be sure, but not permanently suppressed; finally its principles come to rule with the absolute sovereignty of natural law.
Thus our humanity has in fact really emancipated itself more and more over the last two centuries from the unhealthy, confusing, idealistic doctrines, and worked its way through to a clear legal concept, to a concrete natural outlook, to the governmental embodiment of the social contract, and to tolerance of the various forms of the worship of God. Of course, these more purified outlooks have not come to be applied in all and every corollary, as indeed private interest, tradition, and prejudice prevent many of their consequences from being implemented. But in the main principles, we are already all agreed; and even those who find it in their private interest to deny this concession publicly, cannot dispute this agreement in secret. One could even say that all of modern humanity is in agreement on their goals, and that the various parties passionately combat one another only insofar as each one would like to reach the same goal in his own way and probably more or less for his own exclusive advantage. One need only think back historically and philosophically to the idea-processes, the results of which can be hinted at by mentioning the dates 1789, 1815, 1830, 1848, and 1866, and all parties will have to admit that modern humanity has broken radically with doctrinaire idealism and in all consequences of intellectual and concrete world outlook is striving toward realism and toward the correct recognition of its laws and their consequences.
This drive leads by itself, however, to the revision of all prior outlooks, and forces us to rethink every question anew, and no longer to view things in a doctrinaire, ideal fashion, as to how they should be, but rather to look at every thing in an empirical way, as it is according to its nature.
Thus it becomes the task of humanity to take advantage of this realization so that we fit ourselves into the inevitable, recognize it as a natural law, and in precisely this way can become master of its unwelcome influences, indeed can even draw advantages from them. But above all, we had to cleanse the nature of all things from the prejudices that we ourselves have mendaciously introduced into it in the course of millennia of doctrinaire idealism, to free the world of the concrete from the grimaces, imagined horrors, and phantoms of overheated fancy, with which we had populated it and by which we made an existence, that is already so short according to natural law, that is already threatened by dangers at every moment, and that is already by itself so worrisome and full of conflict for the majority, by means of artificially conceived torments into a double hell, in which the human being is not only afflicted by nature, but in which other human beings themselves, preoccupied by false ideas and evil passions, become for him the scourge of a fanatical addiction to persecution!
After healthy reason had blazed a trail far enough that it necessarily had to lead to the most humane tolerance due to the recognition of the constraints of human nature, we had above all to purify our legal concepts, and to break completely with the earlier concepts that nowhere emerged from the nature of the thing, but always only from the abstractions of a doctrinaire idealism, and were already by themselves cruel and unjust, because they paid no heed to human nature. The old feudal state was a state of duties, in which everyone could assert their rights more or less only by recognizing duties that were derived from original sin, and so this state of duties built itself up on the concept of theocracy. The obedient had duties toward their lords, and these toward their lords or superiors, those in turn toward the sovereign, and the latter, along with everyone else, toward God. Thus he felt in all seriousness that he was called to be God's earthly executor, and every follower carried on this imagined task by applying pressure downward, until finally the great masses were to most bitterly feel that they existed only for the fulfillment of duties toward the most varied types of arbitrary power, while only the physically or intellectually stronger could lay claim to rights. The modern state of rights, on the other hand, is the strict opposite of the theocratic-hierarchical state of duties under feudalism. The state of rights has no other purpose than to preserve rights, and when rights are not offended, then it must not make itself felt, as much as society may otherwise need religious, moral, and social discipline, or think it needs them, in order to fulfill its more ideal tasks. For the state of rights cannot recognize abstract rights, but only personal rights of individuals for themselves, and toward society and the state. This state of rights began with the recognition of human rights. The inalienable possession of them, that cannot be lost, is guaranteed to every living person, and it is only through this recognition -- namely that everyone has rights under the state -- that duties also arise for everyone, which can be summarized simply and in all their consequences by saying that no one can violate the rights of others if he wants to see his own guaranteed.
Once this simple and clear truth, which even the gospel set up as the moral completion of the old world view in the deeply human teaching: "Do not do to your neighbor what you do not want him to do to you", and of which historical Christianity in fact did the very opposite, once this truth had arrived once again to general awareness due to the victory of healthy reason after millennia of conceptual confusion, one might have thought that humanity's age of peace had finally dawned, and that it would be very easy now, with this standard in hand, to make laws that were truly just, and that exclude any imaginary concept of crime, so that only those acts are deemed criminal that even the doer would have to recognize as a violation of rights if they were done not by him but to him.
However, as it is difficult to entirely overcome flaws in upbringing, to entirely forget the misleading views of one's youth in spite of better realizations, so it was also not easy to move resolutely and in all consequences from the state of duties under feudalism to the state of rights of the modern outlook; rather we know from the history of the last century that any reform, even the most harmless, can be brought about only step by step, that the principle had often received full acknowledgement before its practical implementation became possible, and that, in spite of a certain boasting about a state of rights, it is known that, in a thousand directions, its real and ultimate consequences have not been drawn. For, quite apart from all cases of bad will, even among the best it is said all too often to this day: "the braid still hangs in the rear." But especially we Germans, who let our brooding scholars tell us so boldfacedly that we have developed the concept of rights the furthest, and who are satisfied by this theoretical flattery, in practice we are subject to the charge that we, not only in political but even more in legal views, hesitated the longest of all the European cultured nations in implementing them in life, and were the last to have emancipated ourselves not only in doctrine but also in practice from the after-effects of the medieval conceptual confusion. France inaugurated the century already with its new legislation based on human rights, and England began the path of legislative reform already in the twenties, [but] we Germans made the first attempts at our own modern legal codes of healthy reason and humanity only at the start of the forties and then only in a few smaller states; in the large states, people only began to think about them once the century was already half over, and in many cases they only managed to achieve halfway modern legal views; and even today when we are occupied with finally formulating universal laws at least for the North German Confederation, we encounter the anomaly that in a few of the states entering into the Confederation the lex Carolina of 1532 still reigns, at least in its outlines, even if all of its consequences no longer find practical application in their entire absurdity, no matter how much they may have been justified in their own time.
This often scarcely conscious, ongoing after-effect of the injected poison of conceptual confusion in the battle with the categorical imperative of logic is noticed in no area more than in that of legislation regarding the sexuality issues of society. Modern society has developed completely different situations and needs than were ever conceivable in earlier times. Especially the hugely increasing European urban population - a total of 75 million individuals, thus more than a quarter of Europe's entire population, live in the 8,656 cities with thirty-thousand inhabitants or more! - with their hourly expanding political and social democratization, with their demands for freedom, easier work, greater earnings, more productive use of labor, more comfortable enjoyment of life, and greed for quick income spiralling higher and higher; and on the other hand the wealth of individuals, which increases steadily, offers the most unrestricted means for all luxuries, and shows the grossest contrasts between rich and poor; finally the ever more universal consciousness of the equality of legal claims to life - all these factors press imperiously toward the state no longer playing in any way the, in any case, thankless and always mischievous role of guardian, but rather limiting itself in complete consistency to its finally won principle of the state of rights, and only concerning itself with society and its actions where they violate or jeopardize the rights of others. Human rights begin in any case with the human being himself, and the most direct possession of a human being is his own body, with which he can perform and practice whatever he desires for his advantage or disadvantage, so long as he does not thereby disturb the rights of others - of individuals, of society, or of the state.
This primeval human right has been able to assert itself due to the impact of closer cohabitation and the urgent needs arising therefrom in such a way in all the circumstances of existence that legislation has had everywhere to give up the doctrines that it had maintained thus far and to adapt itself to the conditions whereby the majority pushes forward with the full prestige of its invincible drive, and cares not at all any longer whether something is forbidden or allowed. Thousands of such reforms could be enumerated involving acts that at the start of our century were still listed among crimes and offences, or were seen as highly improper, but are today so universally common that the mention of their former disapproval would produce the greatest astonishment in the current generation. Let us only call to mind public tobacco smoking, unpunished gluttony, the end of pass controls, the exoneration of so-called usury, the end of debtor's prison and the like, with which moreover, even until recently, more or less dishonoring auxiliary concepts were associated simply because criminal laws deemed them to affect one's honor. In an even more unrestricted, in many respects even horrifying manner, the arbitrary gratification of the sexual drive of the majority, regardless of any existing laws, has asserted itself and taken on such dimensions that the legislative authority must in fact restrict itself to at least protecting the rights of others, and to justly punishing the abuse of minors, the use of force, violations of public modesty, incest, and abuse by persons of confidence or authority all the more severely, the more the so-called general and public immorality unstoppably spreads, and becomes a power in society and in the state that one must tolerate even if it is still obstinately denied legal justification.
Due to this involuntary situation, in which one has to tolerate such conditions because they can no longer be suppressed, but to a certain extent gets revenge for the rudeness of their existence by leaving them entirely up to themselves, and punishes their debauchery only when it is directed against the rights of others, we have arrived at incredible contradictions. Where so-called vice drives around in state coaches, it does not even need the respect of society anymore in order to be master of the situation, and in this way to allow the view to become rooted in the lower classes that wealth makes everything legal and exempt from punishment; therefore, any means is right to achieve wealth as soon as possible. This view goes hand in hand with the doctrine, so gladly preached by national pedagogues, that no kind of work is dishonorable for the human being. The medieval view that certain accommodations and arrangements for money take away one's honor, has by now been thoroughly overcome for a long time, thank God. So if there are today individuals who, in order to earn their bread, have no objection or revulsion to the business of the vidangeur [cesspit emptier] and offer themselves for all of the hundred other dirty, stinking, indeed almost bestial trades, and yet lay claim to full civil honors in the community and in the state, while to a certain extent even more irksome self-abnegation is approved of for females - after all why should the people be prevented from deriving the greatest possible profit sexually from their bodies and - what should not be underrated - a personal enjoyment as well? After all, the load-carrier sells his muscle strength, the night watchman his sleep, the singer her voice, the actress the charm of her appearance, the model his bodily charms, indeed the physician and soldier even their lives, not to carry on such comparisons further. Once the people, therefore, have come ever more universally to this awareness, then scarcely a girl or widow will object any longer to enjoying her life and to letting it be enjoyed, if not directly for money, then for other advantages. Even more, unreflective necessity, and most of all luxury-addicted half-necessity, drives without reservation into the whirpool of "the good life." Thus in 1867 alone, Berlin's inhabitants were made up of 352,914 male individuals and 349,127 female - but among them only 111,300 men and 111,142 women were married. So almost 2/3 of the entire population were living unmarried, widowed, or divorced, and therefore it is rather natural that the morals police have directly registered 11,855 prostitutes, while having another 12,000 under watch, and beyond this certainly 20,000 female domestics, laborers, shop girls, etc. who are beyond the reach of all accounting, and who can be assumed to be living temporarily or permanently in "undocumented marriage." Thus calculated at the lowest, a good 1/8 of the female population of Berlin is living more or less openly in so-called natural unchastity, compared to only 2/8 who are wives; and this full and half-prostitution, which is not only not legally recognized, but against which even a paragraph of the Prussian Penal Code remains - has long ago become such a power that it neither concerns itself with this paragraph, nor can other police regulations be brought to bear against them except on the most random of occasions. This open and concealed prostitution rules the public life of Berlin, especially during certain hours, and on certain streets - not to mention other cities - so much so that a peaceful stroller is easily exposed to insults, but even more regularly to the most immodest and even the most unnatural propositions.
And toward this mass prostitution, legislation has long behaved in a completely passive manner, strictly keeping in hand only the rights of others, and ready for reconciliation in the case of violations. This is all correct from the standpoint of a state of rights. The innocent girl over 16 years of age can, at will, be seduced, impregnated, infected, and made physically, morally, and socially miserable for the rest of her life, without being able to sue for more than food expenses, and these too are cancelled whenever the seducer is unable to provide them.
In the second place this flagrant inconsistency appears even more absurd, indeed outrageous, when on the one hand, as is known, legitimate marriage is made so extraordinarily difficult in modern states, for a hundred reasons, that scarcely 1/3 of the inhabitants can enter into it; while on the other hand, particularly in Germany, people are so glad to lament about overpopulation that a person like Medical Counsellor Dr. C.A. Reinhold could dare to recommend to the government in 1827 the vileness of "infibulation" [surgical sealing of the vagina], the arbitrary inhibition in the exercise of the first of all human rights, which is not denied even to the negro. And such a brutal absurdity found adherents, and likely still has them! What crass contradictions: this extraordinary hindrance of marriage, [and] in spite of it this fear of population, that encouraged people to approve of crimes done by the state, -- but in the same breath again and again the barbaric punishment for so-called unnatural ejaculation of even a mere drop of semen that is infertilely spent between two male individuals, but which can be practiced without punishment between man and woman, woman and woman, and finally even in solitary masturbation, thus in all forms of unchastity, even the most unnatural!
In the third place, then, the horrifying spread of venereal diseases and their resulting conditions, about which two facts neither the government nor legislation does anything - even, according to the principles of the state of rights, should not concern themselves, but rather must leave up to the concern of individuals. And this scourge raging for four centuries among European humanity not only affects people so frequently that among 100 male adults scarcely two could be found who have never come to know this epidemic in their lives, albeit without great consequences, -- even more gruesome are the effects of these three venereal evils in their secondary and tertiary consequential conditions with regard to reproduction, so that we physicians can say without exaggeration that likely a third of all hereditary evils are rooted in the parents and grandparents, and in a thousand ways the enigmatic course of ordinary or especially difficult evils in many individuals can find an explanation only in dispositions that are brought about by secondary causes. Thus in 1866 in France, among 325,000 recruits - thus the youthful flower of the nation - 109,000 unsuitables were found, who had become so due to all possible secondary and tertiary consequences of sexual diseases of their parents. A corresponding statistical evidence is lacking for Germany. So is it not quite excusable, then, if a daily increasing number of playboys, for fear of such consequences, prefers the so-called most unnatural forms of gratification especially with women, to the so-called natural forms that so far are considered the sole means of infection?
Finally, in the fourth place, especially the more the risk of infection climbs, and the more by these means alone so-called natural unchastity becomes a nightmare for delicate minds, and so-called unnatural unchastity with the male sex becomes a criminal notion, but normal marriage is made so extraordinarily difficult, and is usually possible only in later years, in all the more horrifying a degree does masturbation, i.e. solitary self-pollution, come to reign in all classes, among all sexes, at all ages in our society, threatening mankind with nearly complete extinction. We know that almost our entire male as well as female school-age youth population, from childhood years onward is afflicted by this truly vicious mania, by comparison with which the worst so-called natural and unnatural unchastity is a direct physical as well as moral salvation. For what is as unhealthful as it is reproachable in solitary self-pollution can be summarized in the following sentences: Its engine is not physical sensuality, caused by another living being, but the effect of an overheated imagination, therefore it not only attacks the body, but at the same time all of the intellectual powers and in this way it so dangerously attacks the brain, spinal column, throat, breast, and lungs. Solitary self-pollution is even more dangerous due to the aspect of arbitrariness, from which immoderateness can arise; anyone afflicted by it needs neither a special opportunity nor a face-to-face encounter, so that at any minute, and with very neurotic individuals even in any place, in the midst of numerous company and without touching the body, merely by stimulating the imagination, he can practice it and therefore it becomes a mania that increases daily, until its victim is ruined by the excessiveness alone. Nonetheless, not all die of the consequences, even if relatively a lot of them do. But with a not insignificant number the masturbatory drive becomes chronic, and they give in to it their entire lives, even in marriage, to which situations or advantages often compel masturbators, and many reach a high, apparently quite healthy old age, once their body has long ago accustomed itself to this truly unnatural stimulation. But what all secret self-polluters, whether male or female, share in common, is a complete lack of susceptibility to sensual stimulation by others, the capacity for erection only through their own imagination and/or masturbation, and without witnesses. Thus secret masturbators never ever become capable of either the normal enjoyment of marriage or of propagation, because the spermatozoids have disappeared from their semen and it has become watery - but also not capable of either so-called natural unchastity between man and woman or of so-called unnatural unchastity with their own sex. These are therefore true physical eunuchs. It is even more dismal that secret masturbators also become mental eunuchs, hermaphrodites of the mind. Along with the heat of the blood, the secret self-polluter also loses the heat of feeling. He becomes cold of mind, shy of people, heartless, abstract, harsh in his judgments and world views, full of physical and moral repulsion against mutual sexual gratification; and wherever one encounters a coolly uncompassionate, ironically hard-hearted person, you can assume that that person is definitely indulging in secret self-pollution. And through our conceptual confusion about what is natural and unnatural, and also with the help of the fear of infection, we have come to the point that almost 1/3 of the male and female sex indulges in secret self-pollution, often their whole life long!!!
Any prostitute or any other female can seduce a boy over 14 years with impunity, ravage him, abuse him for the so-called most unnatural acts, even make him sick by infection, perhaps make him a miserable invalid for ever, and there is no judge for such crimes, for such acts of opposite-sex intercourse, the outcomes of which are often unforeseeable. But woe to both, if a man makes even the attempt of an unchaste act with a boy or another man, even with their consent and in the absence of any public exposure! Anyone who knows life not merely from books or the gossip of old women, also knows that scarcely a prostitute hesitates to let herself be used in every unnatural form, as the expression goes, and that there are thousands of men, often the most respectable in civil society, who - sometimes out of sophistication, sometimes for fear of infection - indulge in so-called unnatural acts with the opposite sex, and indeed carry out with their own wives cunnilingus, anilingus, fellation, irrumation, paedication, and manustupration, or let them be practiced on themselves, as, on the other hand, women, even in the upper classes, and usually out of sophistication, directly provoke so-called unnatural coitus, no less procure so-called unnatural sophistication with other females for themselves as "tribads". And all these persons, with all these certainly so-called unnatural and, for the dispassionate, revolting acts, not only go unpunished and unpersecuted, many of these men are not even ashamed to admit these tastes publicly, to tell of them with laughter and smirking, without encountering moral indignation or even disgust! Indeed, how many highly respectable civil personalities secretly indulge in such passions out of so-called unnatural sophistication with females, and often no one but their physician or their most trusted friends know about it; but even if it were known around town, they would nonetheless lose neither honor nor respect because after all they are not subject to any punishment. And how many jurors, no less than many judges, who pronounce the word "guilty" in unchastity cases between man and man, out of cowardice or prejudice, have perhaps only an hour earlier indulged in the same so-called unnaturalnesses, but with women, and therefore sit there with a tranquil conscience as strict moralists, and even with physical and moral revulsion, because they were nursed at the breast of a millennia-old conceptual confusion, that the same act is a permitted sophistication and at the same time a contemptible crime, depending on whether it is done between a man and woman, between a woman and woman, or between individuals of the male sex. This conceptual confusion is not only absurd, it is outrageous when one considers that the majority of those who do something like it come away unpunished and without a loss of honor, while the minority, because of the same acts, feels the Damocles' sword of denunciation, persecution, and indictment hanging over them day and night, and knows that, even if they are entirely exonerated, their civil and business relationships will be severely shaken, often ruined, but in case of a guilty verdict both defendants will be subject to a punishment that matches in degree and severity almost that of murderers, robbers, thieves, and forgers, and makes them even less socially respectable, hinders them even more in later advancement, than any sentence given for a real and serious crime. Finally, however, such disgrace afflicts the entire family of the convicted person, who would never come into this position or feel it as a disgrace, if they had a family member with the same unnatural passions who satisfied them with the opposite sex!
So in the first place we find about 1/3 of the inhabitants of a large
city - men and women - if not authorized, then at least completely unprevented
from indulging extramaritally in any so-called natural or unnatural unchastity,
and in no way punishable, indeed prosecutable only if the rights of others
are violated by them. And just as it is in Berlin, it is likewise the same,
in proportion to the number of inhabitants, in business and commerce, in
the luxury classes and in the proletariat, in all major cities of the North
German Confederation, thus in some it is even correspondingly worse; and
in small cities, open prostitution may be less, but not secret prostitution.
In any case, the laws are now in effect throughout Prussia, and shall in
future be in effect throughout the North German Confederation, so that
even now so-called natural and so-called unnatural unchastity is allowed
and unpunished throughout the empire - between man and woman, and between
woman and woman! But between man and man it is, to date, a most contemptible
And with respect to a society such as ours today, especially in the large and medium-sized cities - and Prussia alone has no less than 1212 cities ranging from over a hundred thousand to under six thousand inhabitants - will we seek to preserve medieval views about sexual debauchery, will we seek to allow the same acts in the overwhelming majority of opposite-sex natures to go completely unpunished, while punishing them in the extraordinarily small minority of homosexual natures harshly and even with a declaration of loss of civil rights just like real crimes? That is not only unjust, it is a criminal absurdity from the standpoint of our modern world view.
Only one-third of our present-day society manages a legal marriage, and over one-sixth indulges at will, freely and unabashedly, because with impunity, in so-called natural and unnatural unchastity between man and woman, and woman and woman, and in case of the earliest seduction above the age of sixteen it finds neither protection, nor even compassion or forgiveness, and in most cases must bear the often very bitter consequences of pregnancy, and not less the most horrid consequences of venereal disease, on its own responsibility, and if the basest misery and death were its consequences, the state or legislation gives just as little care - and rightly so in a state of rights - for whether the disease is transmitted to the coming generations and makes humanity weaker and less potent, less able to reproduce, and thus quite in the meaning of Professor Leo a "scrofulous rabble." Finally, another sixth of our present-day society consumes itself from earliest youth until old age with secret self-pollution, which any doctor must equate in most cases with a slow but certain suicide, and that has the additional terrible consequence in moral terms of emotional desensitization and egoistic chilling of the heart. In view of all these evident and unpunished facts that neither a physician nor any other judge of human nature can deny, if he is truthful, we are still - right in the middle of all the other consequences of the modern state of rights - so preoccupied with the traditional prejudices and conceptual confusion that have emerged from earlier religious views of original sin, the devil, and witchcraft and that have led through the historical development of Judaism and Christianity to every possible absurd consequence, that we still even punish the, moreover, proportionately extremely rare cases of unchastity between humans and animals and also the - in proportion to all other so-called natural and unnatural forms of unchastity - rare cases between man and man, indeed punish them with a severity and declare them dishonoring in a way that we hardly do real and very grave crimes by comparison.
Such an injustice that cries out to heaven, and that is at the same time an absurdity, has not been able to maintain itself unchallenged up to our time.
The great and noble Italian legal philosopher Count Cesare Beccaria, in 1781 in his work "Dei delitti e delle pene", spoke the first pioneering word in this matter, even if he appealed more to sentiment than to the logical sense of the law.
Then in 1787, the German legal philosopher Johann Jakob Cella of Zweibruecken appeared with juridical and legal grounds of reasoning in his work "Ueber Verbrechen und Strafe in Unzuchtsfaellen". He taught clearly and soberly that carnal offenses could only be subject to punishment when the rights of others were violated, but never per se, any more than gluttony, imbruting consumption, intoxication, and other obscenities. He spoke a warning already at that time: "It is very dangerous to show up with the criminal code, where mere policy is sufficient. In the end, the people will no longer have a clear idea of what is really a crime and what is merely offensive and impolite." What a prophetic word, 83 years ahead of time!
Meanwhile, however, the French revolution broke out in 1789, publicizing human rights as a basic doctrine.
Thus it was the great French jurist, the former second consul, later Duke of Parma and Imperial Chancellor of the Empire, J.J. Regis de Cambaceres, born 1753, died 1824, who transferred the theories of Italian and German thought into practical life, and for the first time in European legislation, in the Code penal Napoleon, published under his editorship in 1806, emancipated himself from the millennia-old conceptual confusion and made no mention at all of so-called natural and unnatural unchastity, except where they came into conflict with rights of others. What his opponents relate about the personal inclinations of the great legislator and organizer can still be read in any French biographical lexicon.
Soon thereafter, a German state had Judge Anselm von Feuerbach, born 1775, died 1833, to thank for the first legislative action in this direction. He was appointed to create the Bavarian Penal Code that took effect in 1813, to replace the bestial Bavarian Criminal Code of 1751, of which the principles relevant here were upheld in the Bavarian Penal Code of 1851; the annotations published on those paragraphs according to the protocols of the Royal Privy Counsel said: "the older laws often confused immorality with illegality." No one would approve of witchcraft(!), sodomy, unchastity, unbelief, heresy, blasphemy and the like, or view them as something (morally) permitted. However, such items(!) lie outside the sphere of a penal code, as long as they are not connected with a violation of the rights of the state or of a private person. When such rights are violated, however, specific criminal provisions have already existed for a long time." Feuerbach motivated with this logic the consequences of his legal doctrine that suicide, self-mutilation, and self-pollution cannot be crimes per se, if they do not damage the rights of others, and what is not subject to punishment in the individual cannot become so if, with the same regard for the rights of others, it is practiced by two or more individuals reciprocally and voluntarily.
One ought not to believe it, but it is unfortunately historical fact, that from 1813 on for over a quarter century the flagrant anomaly prevailed that in one state of Germany the same act was exempt from punishment while in all other states of Germany it continued on and on to be deemed a detestable crime, and was declared to be dishonoring and punishable with a severity that is hardly applied for real and very grave crimes by comparison.
Once Feuerbach's principles had been put to a sufficient practical test for a full 22 years in Bavaria and truly no "greater moral deterioration" in this direction had resulted, Wuerttemberg was the second German state to follow the same legal logic. Section 310 of the Wuerttemberg Penal Code of 1839 provided that "unnatural unchastity" was not punishable per se, but only in those cases - and only with not less than six months local jail time - where it caused a public nuisance or the insulted person brought a charge, on whose behalf the parents or spouse(?) were also entitled to bring a charge against his will.
Already the following year, Hannover accepted the same legal view and the "Criminal Code for the Kingdom of Hannover of August 8, 1840" in its Section 276 declared "unnatural unchastity" to be likewise exempt from punishment in principle, and only prosecutable in case of "instigation of public nuisance" - "or if there were grounds for concern about such..., but then also only with intensified work-house of not less than six months."
It is true that both provisions, Wuerttembergian and Hannoverian, opened the way for denunciation, malicious slander, and police abuses, but they started from the principle of its unpunishability, and only reversed this by means of supplemental circumstances.
Even more. Your Excellency, who are known in the juridical literature as the author of the exemplary Hannoverian Civil Code, are also said to have had a decisive part in the writing of this penal code. In any case, Your Excellency served later as Hannover's justice minister, and therefore you are the highest authority on the question of whether the sixteen-year practical implementation of that tolerant paragraph has significantly contributed to a "most perilous moral deterioration" taking hold among the Hannoverian people? Anyone who is familiar with that very good-natured branch of the German people, among whom fewer crimes take place over the span of years than elsewhere in days, can answer the question himself.
Now despite the fact that this principle had been accepted and put in practice already in three German states, neighboring states, even adjacent states, persisted with the conceptual confusion that extended from the lex Carolina to the state laws. Braunschweig and Oldenburg not only instituted new "forced labor of one year" as late as 1840, but the legislators there were so naive-prudish that even in their legislation they could not precisely name the crime that they were targeting: "for we must guard very well against describing such crimes more clearly in legal codes." Probably this was also the assumption of Hessia-Darmstadt and Frankfurt in 1841, with their "prison for up to five years" and the Thuringian states in 1846 with "prison for up to 1 year." The latter code, unique in Germany, also punished "the defilement of corpses" in the same paragraph.
The most awful procedure, however, was followed in the two major German states, Prussia and Austria, where it had taken a half a century to decide to move beyond "state law" and the "criminal corpus" and finally to promulgate new penal codes in the spirit of the nineteenth century.
At that point, Prussia was given the penal code now in effect on April 14, 1851, and Austria got its own, that is still in effect today, on May 27, 1852.
The first threatens "unnatural unchastity between man and animal, and between persons of the male sex, with 6 months to 4 years simple confinement, as well as the loss of civil rights, if only temporarily", while the latter, in keeping with the lex Carolina, also mentions unchastity between "woman and woman"; for in its text it punishes unchastity: "a) with animals, b) with persons of the same sex" with heavy confinement of 1-5 years. According to the principle of the Prussian Penal Code, such acts are merely offenses, while according to the Austrian code they are downright crimes!
No wonder that, using these models, the Kingdom of Saxony along with Saxony-Altenburg in 1855 provided "prison or workhouse up to 1 year" and indeed - again unique in Germany - punished the spreading of syphilis with the same severity, and [the fact] that the two Mecklenburgs, Baden, etc., did not lag behind with their "up to two years of workhouse" is known to every judicial historian.
What was the result of this draconian legislation?
The "Motives of the Prussian Penal Code" elaborated already in 1847
presented Section 143 as appropriate:
"because such acts manifest a special degeneration and
degradation of the human being, and thus
are dangerous for morality."
This three-line argument appears above all, perhaps unconsciously, to have been a reminiscence of Emperor Theodosius's "sacrosanctum esse debere hospitium virilis animae" ["the container of the male soul must be sacrosanct"] by which this Byzantine sought to justify the death by fire dictated by his Code - while still upholding serfdom, which is a million times more degrading and bestializing!
In any case, this three-line argument shows that the motivators either were lying to themselves about the real conditions of modern society, or else wanted to lie to the world for the sake of their precious prudishness.
Above all, all three conclusions used in this argument are appropriate to any form of sexual debauchery, especially to the ones that are totally permitted, and beyond this to all sorts of other challenges and arrangements not even of a sexual nature. Or does not the same act practiced between man and woman or between woman and woman require the same "degeneration and degradation" of the human being as when practiced between man and man? Where can such a huge difference be rationally conceived, so that the same act committed by the majority completely without punishment should appear in the minority as a heinous and dishonorable crime? And when a person, simply in order not to starve, and for the benefit of society, agrees to take the job of a vidangeur [cesspit emptier], a business that causes revulsion by its mere mention, or a hundred other no less revolting jobs, occupations, and livelihoods - by your leave! - the further specification of which I may decently dispense with - should not oversensitive natures also find a "special degeneration" and "degradation of the human being" in such arrangements that are even praised by civil society? As for the danger to morality, well, the acts that will have the most dangerous effects on society will be those that, because they go unpunished, have unabashedly displayed their enticements on every street corner, to which opportunity arises so tremendously that it takes a peculiar moral strength to resist them over time, to which the youth can in any case be most easily seduced because they match their natural drives so nearly, and that in so exceedingly numerous cases every day result in the gravest consequences, often undermining entire existences or poisoning young bodies for their whole lives long? Finally, however, when legislation withdraws strictly to its legal principle and, correctly, does not concern itself with the moral condition of such characters, who as young, strong men offer themselves simply for money to old, sickly women for all sorts of so-called natural as well as unnatural unchastity, risking thereby their health and their social respectability, just as conversely young girls for the same motives serve old men in an unfathomable sophistication, or as even in completely normal marriages, as has been proven, the one partner physically ruins the other partner by forcing [him/her] to satisfy [his/her] animalistic lust, often exposing [him/her] to the most protracted diseases, and finally, despite any doctor's warning, often brings about the death of the victim - how can this halfway legislation arrive, out of an overcautious concern for morality, at the inconsistency of only protecting the man, who is after all the stronger sex, from the demands of other men, since this same act is viewed as a special "degeneration" and "degradation of the human being" only between man and man, but not between man and woman or between woman and woman?
You see, it is impossible to escape this circle of contradictions, which can only be solved by the alternative of either declaring all forms of mutual unchastity to be equally punishable and prosecuting them, or else not attributing punishability to any of them, except in cases where rights of others are violated. Every morally thinking person is of the first opinion; but it cannot be implemented in practice for innumerable reasons, as experience shows sufficiently, so that for the sake of justice and reason nothing is left but the second alternative, which is that of the state of rights. The arguments of the penal code motivation of 1851 divulge in addition a peculiar naivity toward historical facts, a real ignorance in anthropological and scientific questions in general, and finally an obvious ignorance of the real nature of the matter in question, its true relation to society and the individual, and its character from a health standpoint.
For the word "degeneration" undoubtedly referred to those individuals who are afflicted with homosexual passions and who actively seek persons for their gratification; in the case of the passives, on the other hand, it is assumed that they find no satisfaction of their own in the act, and thus offer themselves up for the most reprehensible interests and, in addition, only in such an untoward and at the same time - as is commonly assumed - such an unhealthy manner that absolutely deserves to be called "degradation of the human being". This is not the place to dig out sexuality studies in scientific detail. But their conclusions, in short, are as follows: along with the normal-sexual drive of all of humanity and of the animal kingdom, nature in its sovereign whim appears in both man and woman to have also given the homosexual drive to certain male and female individuals at birth, to have conferred on them a sexual constraint that makes the one afflicted by it both physically and mentally incapable, even with the best of intentions, of achieving a normal-sexual erection, thus providing a real horror toward the opposite sex and making it impossible for those afflicted by this passion to resist the impression that certain individuals of the same sex exert upon them. Such [female] homosexualists were called "tribades" by the Greeks, as is known, and such are often physically abnormally shaped in certain respects as well; but such [male] homosexualists were generally called "paiderastes" by the Greeks, because in southern races this drive was mostly directed only toward youthful, sexually mature men. In northern climates, on the other hand, a stranger and even more puzzling result came about, which will be mentioned at the appropriate place. It is self-evident to any anthropologically educated thinker that persons afflicted by such drives either encounter individuals of their own nature, and then there is simply no justified objection to it; because both are by nature lost to normal-sexualism, and could at best be expected to live their whole lives in absolute chastity, and to take their existence as a punishment for the fact that nature organized them in this constrained manner, completely without fault of their own. Or, on the other hand, such homosexualists turn their inclinations toward normal-sexuals, and if the modern state of rights in principle concedes to the latter to do with their bodies what they like in all cases where no rights of others are violated, then it is not apparent what sort of difference is supposed to lie in the same act, whether it is committed so-called naturally or so-called unnaturally, in an opposite-sex manner or in a same-sex manner? In any case, however, with both individuals, more or less to a certain extent, mutuality of gratification must be assumed, for this is after all in the nature of the thing, even though for the normal-sexual it may be far more gratifying in the opposite-sex manner. This is all the more to be expected when one soberly imagines what can happen sexually between two individuals of the same sex? Simply put, there are only two forms of completion: either emissio seminis [ejaculation] or immissio seminis [ejaculation into someone's body]. Both acts are also not only possible between man and woman, they occur - the first often out of fear of infection, the second for the same reason, but also really only from sophistication - in an opposite-sex manner every day far more often that the non-observer of reality may believe! The most decisive difference of all between the acts of the opposite-sexuals and those of the same-sexuals is that the first end in almost all cases in real or imitated coitus, while among the latter the imitation of coitus, thus the so-maligned immission, occurs at most in 10% actively or passively, that rather 9/10 of all homosexuals lust only for mutual manustupration, while the mere thought of anything else is abhorrent to them. We shall see that even the Royal Superior Court, immediately after the Penal Code of 1851 had taken effect, was unable to avoid taking account of this highly characteristic fact. It is all the more characteristic and all the more solidly to keep in mind, if we intend anthropologically to arrive even approximately at the key to explaining the natural riddle of homosexuality. Thus it is not the so-called unnatural imitation of coitus that generates the drive of man to man; it occurs at most occasionally in this passion as in normal-sexual passion, and likely only in particularly crude and basely sensual individuals. This fact is proven in itself by the fact that if the activity of immissio were the drive among homosexuals, they would not need another male individual to gratify it, but rather they could be satisfied with a woman, which, moreover, would be for them doubly unrisky and totally free of punishment, as remarked above. But they are not only not capable of the same act with the woman, indeed, they are not even capable of an erection with a woman; rather downright 9/10 of homosexuals do not seek this completion even in same-sex enjoyment, and rather have a physical aversion to it, while they indulge all the more passionately in mutual manustupration. Thus it is evident to the anthropological observer that the masculine itself, as opposed to the feminine, its habitual atmosphere, as well as its genital-erective peculiarity, is the actual engine of this passion, and that at most isolated individuals among the addicts are really sensually driven to imitation of coitus. This fact explains, on the one hand, why certain apologists have so often attempted to explain the homosexual drive as by way of a special sense for beauty, namely for plastic beauty, because, from purely anthropological standpoint, the male body is not only for its own sake undisputedly more aesthetically beautiful than the more sensually enticing body of the female which is only a means to an end, and on the other hand, why in fact the homosexual drive is usually directed toward undeniably physically or physiogonomically beautiful persons, and in such relations often finds its fullest satisfaction in a purely platonic manner, and more often in mere mutual manustupration, and only in relatively very rare cases sinks to coarsely sensual imitation of coitus. The characteristic thing about normal-sexualism, however, is the exact opposite. This full sexual drive could not at all remain purely platonic, once it has come to a physical touch. Mutual manustupration occurs with it at best as a precaution, and appears truly unnatural in regard to it. In most cases, opposite-sex touching leads with all the force of passion directly to coitus, and the need for this outcome by itself makes it understandable that the attraction to it is stimulated less by a special aesthetic beauty than mostly only by an enticing sensuality that is often even associated with ugliness and uncleanliness. That is why we see that the man can be easily brought into a sensual relationship with just about any woman, and the woman even more with just about any man, which leads almost always to a completion in coitus; on the other hand, however, that the homosexual among thousands of his own sex in whose midst he moves every day without even being recognized by them for his special inclination, directs that inclination only toward isolated individuals, and rarely in fact to the non-beautiful. All that must logically lead us to the conclusion that the homosexual is a constrained nature, who, no matter how much he might try, can neither turn to the woman, -- or the woman to the man -- nor to immature children -- for virility is the basic prerequisite for his drive, indeed not even to every male individual, but rather depends in his passion on certain sensual causes, and is not even capable of an erection whenever these are absent. This also explains the highly characteristic fact that the homosexual almost never indulges in solitary self-pollution, as much as he is driven toward mutual manustupration, simply because his drive is not awakened by imagination, nor by an objectless itch excited in his own body, but rather only by certain persons who, from the age of mature boyhood to the age of manhood, present the full character of virility, as opposed to the feminine, in every detail of their appearance. In this constraint there also lies the full guarantee that even with the most unrestricted freedom for this special being, who always exists in a relatively small number, general morality will never be subjected to great danger, indeed the opposite is true. For on the one hand, homosexual drives are not arbitrary, not some form of sophistication -- as thoughtless tradition often maintains -- but rather innate. This rules out the worry that homosexualism could make converts over time among the ranks of the majority, for whom the stronger drive of normal-sexualism is innate, who therefore entertain such propositions only temporarily at best, but then will always follow the stronger nature again. And on the other hand, there is even less danger for the issue of procreation. Because the homosexual is already lost to this task by his nature: and the normal-sexual also cannot transform his own nature for ever. And even if he lends himself now and again to the half-enjoyment, the "eternal feminine" attracts him more strongly at the next opportunity anyway. This is shown by the history of all southern lands of the ancient and modern ages, in which, despite all licentiousness, procreation has never been stopped there by it alone, on the contrary, it has increased more and more for millennia. As for the so-called "seduction of youth", the nature of the homosexual, who is only attracted by the virile, means that young people under 14 years are already safe from his advances, while the more mature male youth, especially the general youth of our civilian and military schools, because due to our moral views thus far every other form of gratification is decried by society as a sin and a crime, indulges -- as all experts must unfortunately concede -- in secret self-pollution as soon as puberty awakens, in almost epidemic proportions. Isolated sensual individuals likely fall to opposite-sex prostitution, and often even sooner to the most terrible scourge that poisons their whole future. Now, and against these two alternatives the physician can only say that mutual manustupration appears to be really a salvation from a health standpoint!
The sober anthropologist will see the normal-sexuality of both man and woman completely differently, and recognize that in the unconstrainedness of its capacity for degeneration it is incomparably more dangerous to society. Both are driven by their nature to indulge in so-called natural as well as unnatural coitus in an opposite-sex manner, because their potency is unrestrained. They are also capable of surrendering themselves actively or passively to same-sex debauchery. No less, normal-sexuals perform secret self-pollution at times, if a more conducive opportunity for gratification of the sexual drive is lacking; and they refrain just as little, and moral self-control does not restrain their lust, but they assault immature children of the male but especially the female sex, are addicted to incest, and indeed degenerate to the point of abusing animals, and even corpses. And only among normal-sexuals does the specialty of the so-called "bleeders" occur, the example of which we have with certain animals that can only satisfy their lust in a bloodthirsty, wounding, and tormenting manner. For normal-sexuals are by nature completely unconstrained in their capacity for erection; while, on the other hand, homosexuals, like monosexuals -- for whom secret self-pollution has become a chronic need -- are at best constrained to one side and impotent if the conditions that arouse them are absent.
Therefore, it has been one of the most awful conceptual confusions for millennia, arising from religious ideas, by which the recognition of very clear, if otherwise puzzling, natural laws has been prevented: to assume that homosexuals could commit sexual crimes opposed to their nature. The exact opposite is the truth. Those monsters of the Roman imperial period, as in the 16th century the Marechal de Retz and in the 18th century the Marquis de Sade, they all indulge in the most revolting and bloodthirsty dissipations, but, as is known, not exclusively with male individuals but with them only on the side and as a sophistication, but mainly with women, indeed even with animals. On the other hand, the anthropological researcher finds that among the most primitive peoples - according to Sextus Empiricus also among the ancient Germans, about which the severe punishments of later times leave no doubt; according to the Spanish and Portuguese writers from the time of the discovery of America among all Indian tribes; according to other authors among the Kamchadals, the Cossacks, the Swiss alpine peoples, the Slavs and Mongols of the Danube countries, etc. - homosexuality has always been as present as among the most luxuriously sophisticated, thus it must undoubtedly be innate; the historical researcher, on the other hand, [finds] that in spite of the millennia-long bestial penalization of this drive it could never be suppressed among those afflicted by it. The historian mainly also encounters the apparently so inexplicable psychological puzzle that history mentions so many splendid, rich, and on the other hand, so many of the most important intellectual and moral persons, to whom the reputation for irrepressible homosexual inclinations has adhered. To say nothing of Greek and Roman antiquity, and to cite only the most conspicuous names from the Christian era, we should mention the princely persons: Cosimo de Medici; Farnese; Charles IX, Henri III, Pope Julius II, James I, the two Condes, the Duc de Vendome, Louis the XIII, his younger son Philippe d'Orleans I, William III of Orange, August Wilhelm von Wolfenbuettel, the Prince de Conti, the natural son of Louis the XIV, Count Vermandois, then Charles II Stuart, Peter the Great, Karl XII, Corsica's adventurous king, Theodor Neuhoff, Sweden's Gustav III, Czar Paul I, even at a certain time Napoleon I, then Louis XVIII, etc. And what view Frederick the Great had on this issue can be found in his works! Of prominences in statemanship, the arts, science, and poetry, let me mention here as well only the most important of all: Gonsalvez de Cordova, A. Politiano, Machiavelli, Michel Angelo, Razzi, called "il Sodoma", Giulio Romano, Bonfadio, his adolescent poems according to Theodore de Buze, then Mureto, E. Jodelli, William Shakespeare, Mazarin, F. Pallavicini, Moliere, the Marechal de Luxembourg, Lully, Bishop John Atherton, Archbishop Tellier, Isaac Newton, Cardinal Bouillon, Earl of Rochefort, Count of Portland, Michel Baron, Graf Zinzendorf, the adventurer Bonneval, Parliamentary President Harley, Mylord Albermarle, J.J. Winckelmann, Marquis de Villette, Chevalier de Boufflers, Cagliostro, Johannes von Mueller, Cambaceres, Imperial Chancellor of the Empire, E. Bridgewater, Canova, Iffland, A.W. von Schlegel, Minister Kolowrat, Lord Byron, Archbishop Sibous, Marquis de Custine, comedy writer Wurm, August Graf Platen, Chevalier d'Appert, W. Kunst, F.M.L. Banus Jellachich, Eugene Sue, A. von Sternberg, F. Ponsard, etc., a list that could be extended into the thousands. This list should also not be doubted because it features so many who were notoriously married, indeed fathers. That proves only -- what any initiated anthropologist knows anyway -- that homosexuality often comes forth to consciousness only very late, but then becomes only predominant, but -- like monosexuality -- does not make one absolutely, but conditionally, impotent, always in relation to the non-homogenous. But in view of those historical facts, easily demonstrated in the sources, [how can they] exist along with or indeed be reconciled [with the fact] that so many so eminent minds and in many ways worthy characters, who are the pride of our cultural history, yet at the same time, in spite of their enlightened judgment -- and moreover that others, in spite of their power and wealth that permitted them the free and limitless choice of enjoyments - were suspected or arrested for such inclinations that one had viewed to date as crimes, sins, and abominations, that make a person worthy even of prison? If such a view continues to be maintained, then is our entire historical doctrine a lie and a palliation, for which one certainly cannot gain relief from the words of Dr. Reydellet, who said: "One can say in general that these great men were all placed ouside of nature!"? And indeed, all these absolutely irreconcilable contradictions between our previous doctrinaire conceptual confusion and psychologically puzzling historical facts finally brought about in our time the scientific investigation of this question from a natural scientific, medical, and social standpoint. The Prussian Penal Code of April 14, 1851 already resulted on July 1, 1853 in the decision, so important in principle, by the Royal Prussian Superior Court regarding "mutual masturbation"; in 1856 [sic - 1852?] the late Medical Counsellor Dr. Casper began to publish his remarkable forensic medical investigations; these motivated Dr. Tardinu [sic - Tardieu?] in Paris in 1858 to report his own observations; and in 1860 the practical textbook on criminal police of the then Royal Police Director Dr. Stieber appeared; but then in 1864 the disclosures of the Paris Police Chief Canler about this issue that until then had been prudishly kept silent.
Note on II. If it was first asserted that the homosexual is not capable
at all of erection with the opposite sex, and yet the historical list contains
some names of persons who were notoriously married and even frequently
the father of several children, then that appears to be a contradiction.
As already remarked, this cannot be the place to go into anthropological
and psychological detail, even for the simple reason that it would not
change anything with regard to the legal issue concerned in these letters.
Let it only be noted briefly here that the almost invariable rule of this
drive points toward innate antipathy toward the opposite sex, from which
even those persons cannot deviate, who entered into opposite-sex marriage
because they were either entirely unaware of the nature of their urge and
never had an opportunity to gratify it, or because conventional causes
forced them. Such marriages are on average either extremely unhappy and
unfruitful, especially for the man; or his youth mechanically submits in
the beginning, due to its potency, to the stimulation without his having
any enjoyment of the woman nonetheless, and despite his becoming a father,
until he arrives on the correct path of his obscure urge. From then on,
a return to the normal-sexual is as impossible for him as for the one who
instinctively never got to know woman from his youth onward. And such remarkable
examples, which speak even more than all other symptoms for the innateness
of the drive, that can be suppressed for a long time by circumstances,
but never entirely extinguished, are indeed often encountered by anthropologists
and physicians, although never in a decisive majority. On the other hand,
there really are also natures, although so far little known, who feel in
themselves both drives at the same time, and have the drive to the feminine
and the drive to the at least boyishly masculine. Horace says so of himself
in the second satire, lines 116-118, regarding Lysiscus. History relates
the same of the founder of the Medicis, old Cosimo, who allowed Panormita's
"Hermaphroditus" to be openly dedicated to him. And concerning Czar Peter
the Great, one of his biographers says: "He liked women very much, and
was not particularly choosy; in the effervescence of his temperament, one
sex sometimes took the place of the other." In all these cases, it is to
be assumed, however, that their protagonists were not real homosexualists,
but rather highly potent, passion-blinded, and sophistication-addicted
normal-sexuals. This anthropological puzzle of nature has for millennia
been so deliberately excluded from natural scientific observation, that
we have preserved only very idiotic traditions about it and are unaware
of its exceptions and transitional varieties. And yet nature never remains
true to itself in anything, but rather in everything appears whimsical
a thousand times over. Nonetheless, it is firmly established that the great
majority of homosexuals are really incapable of woman, and most of them
have never had anything to do with women, but rather from the earliest
development of puberty onward have turned exclusively and irrepressibly
toward their own sex. And this characteristic of constraint in the majority
of those homosexuals is the solely decisive factor for forensic medicine,
and for the modern legislators of the absolute state of rights.
If the first two letters were intended to bring evidence and reasons for the fact that since the beginning of our century in all civilized countries the legal view has forged ahead that sexual unchastity, insofar as rights of others are not violated by it, can in itself be no more punishable than other acts of immorality and obscenity, and that therefore so-called unnatural unchastity - both sodomia generis and sodomia sexus - should not be viewed as an exception since it differs in no way from all the other types, but that sodomia sexus between man and woman has always been free of punishment, and between woman and woman it has been free of punishment for a long time, and that the same crime cannot justly be punishable merely because of the difference in the individuals, if by it alone no rights of others are violated - finally that, while the legislations of France, Bavaria, Wuerttemberg, and Hannover punish so-called unnatural unchastity between men only when rights of others are violated thereby, the Prussian Penal Code of April 14, 1850 [sic] not only retained the severe threats of punishment, but even - to use the most polite expression - motivated them in such a strange subjective manner - the present letter shall attempt to demonstrate genetically how this theory has proven immediately unworkable in practice.
The Royal Prussian Superior Court decision dated July 1, 1853 made the first breach in Section 143, and also upheld its view in principle in repeated identical decisions. It ruled that not only "onanism" [masturbation] but also "mutual onanism between man and man was not punishable"; and it motivated this decision as a consequence of the fact that mutual onanism between man and woman, and between woman and woman, were also not subject to punishment. It is astounding to see such a correct deduction not then followed out to the end. That which speaks in legal terms for the freedom of mutual onanism, certainly also speaks for every other possible active and passive act between man and man, which is just as possible as it is frequent between man and woman, and yet has always been free of punishment for the latter? And yet the Royal Prussian Superior Court found perhaps the imitation of coitus between man and man to be dangerous to health from a forensic medical standpoint, and at the same time for only too easily recognizable and terrible in its consequences, and therefore wanted at least to protect, say, male youth especially in the barely mature age of boyhood, from the grossest brutality.
But then from 1853 on, there came the late Medical Counsellor Dr. Casper, and proved with his numerous examples drawn from his most varied experience, which he published especially in his "Vierteljahresschrift fuer gerichtsaerztliche Medizin", that, on the one hand, the great majority of the so-called sodomites were their entire lives merely mutual masturbators, and therefore free of punishment within the meaning of Superior Court decisions; that, however, on the other hand, even in the majority of those who were most urgently suspected of active or passive imitation of coitus, unless they were caught in the act, hardly any physical traces could be found on the basis of which a conscientious forensic physician could even make an approximately absolute proof that that act had taken place between the two. This proved that the concession of the Superior Court decision benefited 9/10 of those suspected of homosexuality, and exempted them from punishment, but was unable to protect them from indictment and investigation. For so long as any act of homosexuality, unless it violates rights of others, is subject to punishment, it cannot be determined in advance, especially in cases of malicious denunciation, what act was actually committed: whether one of those exempt from punishment or one of those subject to punishment. Therefore, there is no other alternative than to drag the accused or suspect to account, to subject him to an often lengthy investigation, which by itself is enough to ruin him commercially and at least to dishonor him socially. Then it depends on chance or the whim of the forensic physician, who in the examination looks for certain traditional physical symptoms, whether perhaps an innocent man is found guilty, while the one actually guilty under the law is exonerated, depending on whether the first, by a play of nature or quite harmless circumstances, e.g. the use of an enema, by chance carries the symptom in his body - a funnel-shaped sphincter ani - while the second, although he submits to this dissipation, does not carry any physical symptoms of it. But Dr. Casper warned in vain against the deceptiveness of such symptomatology; the well-known Parisian forensic physician Dr. A. Tardieu - merely out of an obsession with contradicting "limited" German scholarly views - wrote his well-known book against Casper, rich in data but in its logical conclusions at times downright ludicrous, and created a whole system out of the symptoms that he had observed, without noticing in his eagerness that - since in France so-called unnatural unchastity is not punishable anywhere except when it conflicts with the rights of others - the French hospital physician has no opportunity to observe this vice in the civil society, but can only do so on those individuals of male prostitution who are lost in filth and misery, whom the police occasionally snatch up in order to avoid a public scandal, and who therefore in fact differ in no way from the female prostitution of the same low oblivion. But surely we do not draw scientific conclusions in questions of sexuality based merely on the grossest debasement of the scum of prostitution?
By the way, it was also Dr. Casper who proved using examples that this so-called unnatural unchastity could not have any particular different unhealthy consequences than any unchastity, primarily when it is done to excess, and when the uncleanliness of the individual makes it even more dangerous. Finally, Dr. Casper was the first who, from a purely medical standpoint, concluded that this puzzling, one-sided drive was innate, and should therefore be free of punishment.
We were provided with very remarkable information - although accompanied by many false conclusions - in 1860 in Chapter 19 of Royal Police Director Dr. A. Stieber's "Praktisches Lehrbuch der Criminalpolizei" ["Practical Textbook on Criminal Policing"]. The main proposition was that "while in the Orient young blossoming boys are the object of this crime, it is practiced in Germany on men, namely soldiers. At times it has achieved a spread that far exceeds all imagination. There were unfortunately entire units in which the soldiers earned extra money by such submission. Mostly old lechers come onto this errant path, but it also happened that younger persons succumbed to those sorts of temptations. Such were usually filled with a strong aversion toward the female sex, but there were some cases of happily married men, who even fathered children, and yet were secretly addicted to this 'vice'. At times actual love relationships developed between pederasts, as well as scenes of the most furious jealousy between men. They wrote the most glowing letters to one another, and treated one another with an attention that bordered on gallantry. In large cities, they had certain out-of-the-way (?) places where they practically prostituted themselves. There were even very intelligent, talented, and highly-placed men of a good-natured, even noble character who were taken by this tragic (?) vice." And then as a police official, the author adds: "But this vice slinks around in the dark so that one usually barely notices it, and unless some public nuisance arises, or the matter takes on too widespread a character, the police official does well not to delve too deeply into these filthy, dark circumstances. Usually not much comes of it, since in such acts both parties are punishable, and witnesses for such a concealed act are never summoned, so that the proof of the crime is difficult to construct." The latter indications of such a seasoned criminalist are, probably unintentionally, by themselves the sharpest criticism against Section 143 and its continued existence, since they prove its purposelessness from the fact that, once Dr. Casper has assured us from a forensic medical standpoint that no kind of generally accurate physical symptoms show up as a result of this unchastity, that would allow a decision of whether merely permissible mutual manustupration or the act still subject to punishment itself, active or passive, were performed, a so experienced court official makes the concession to us that from a police standpoint it is also difficult to find signs and proofs that "would justify the arrest of the pederast". As with no other offense, the possibility is frighteningly likely that those who are actually guilty within the meaning of the law will escape or not be noticed at all, while on the other hand innocent persons are punished by the justice system due to a confluence of suspicious circumstances. How many suicides occur, as a result of mere arrest on such a suspicion, is known to every seasoned policeman and investigatory judge. And statistics are likely to throw even more frightening light on the practical ineffectiveness and perilousness of Section 143. But before we turn our attention to this statistical, and in the present question highly sorrowful, source, it shall be mentioned regarding the characteristics noted by Dr. Stieber that his observations cited at the beginning are surprisingly correct, more correct than the blather of some theoretical scholars before him, such as that of the pessimist A. Schopenhauer.
Indeed, while in all southern countries this tendency turns especially to the beauty of mature boys, by whom alone it is inflamed, and the Greeks even considered this reciprocity among bearded men to be shameful and disgraceful, the same tendency reigned in all northern countries no less strongly, but almost only old men who earlier indulged in normal-sexuality and where not entirely free of the sense for the feminine, to which the boy and the youth still correspond somewhat, or downright artistic natures are fascinated by the morphologically more delicate, bashful, beardless; the far greater majority of all northerners, in whom this tendency is innate, have such a horror of the boyish and the feminine in their own sex, and all the more passion not for the "youth", but for the "young man", to which category soldiers mostly belong, and indeed for the man, even for the mature man over the age of forty. If the homosexual drive is a very strange natural puzzle, it is certainly even much more so as an inclination toward the really masculine, mature, bearded, and muscular. By the way, there are indeed also among us normal-sexuals men as well as women who have a sensitivity only for the mature, even the overly mature, who as men are left cold by girls, and as women are left cold by youths, no matter how beautiful. In any case, however, the direction that this drive takes in the north is a great relief to the all-too-worried society, that seduction of boys will not gain ground all too much, and in the face of this remarkable fact the governmental tutelage is logically even less justified. For if it only concerns persons who already enjoy and exercise all civil rights, among whom accountability and the power of self-control is presumed, who are moreover free to commit any act of so-called natural and unnatural unchastity without punishment, then its seems downright comical to imagine that with such independent citizens the same act practiced with a woman should be allowed, but practiced or tolerated by a man, on the other hand, should be a scarcely forgivable crime. And here at the same time is the point at which even such a sharp observer as the former Royal Police Director came to false anthropological and police-related conclusions. He says namely: "Usually only the active pederast is addicted to a sensual enjoyment, while the passive submits himself merely for the love of profit." This sentence therefore takes no account of the main proposition that 9/10 of these northern homosexualists - so inaccurately called pederasts, i.e. boy-lovers - practice in general only mutual manustupration, which cannot possibly provide merely unilateral enjoyment. However, in active and passive imitation of coitus, when practiced between two homosexualists, a mutual enjoyment always takes place - which emerges already from the fact that so many passives practically throw themselves at actives and pay them richly - and even the one who offers himself passively only for profit - although he may prefer the same act with a woman - must, on the other hand, more get enjoyment than pain from it, because no one voluntarily offers himself repeatedly for mere suffering without mutual gratification, for example, to let a tooth be torn out for money; at most he lets himself be duped for that a single time. However, that a love of profit incidentally also plays a major role in such situations cannot be surprising, since it plays a much larger role in normal-sexuality, and unselfish, sacrificial love is certainly to be looked for least of all in the realm of unchastity, whether it is so-called natural or so-called unnatural.
May Your Excellency permit in conclusion for now a reference to the statistically discoverable results that have been obtained for 18 years by that Section 143 in the judicial practice of Prussia. Unfortunately, there is no more detailed information on this than that which concerns the jury trials from 1854-1865, published by the Royal Justice Ministry in the Royal Private Superior Court Book Printer's in Berlin, seven volumes quarto. These refer for the year 1854 to 8500 crimes that went to trial: 399 of them crimes against morality, thus 5 %; in 1855 the proportion to the total of 9663 was 3 %, thus there were 325; in 1856, out of 9856 cases, 4%, namely 414; in 1857 there were 8% out of 7550 cases, or 569; in 1859, out of 6021, 10%, or 587; in 1859, out of 6532, 9%, or 580; in 1860, out of 6920, 8 %, i.e. 550; in 1861, out of 7374 crimes, 7%, namely 551; in 1862, out of 7548, 8%, or 633; in 1863, out of 7645, 9%, or 714; in 1864 out of 7435, 9%, or 695; and in 1865 out of a total of 8154 crimes that went to trial, 8%, or 774 cases of crimes against morality. Thus in 12 years, out of 93,225 crimes that went to trial, only 6789 and only 6% were at all and generally speaking "crimes against morality", while "crimes against property" alone exceeded a good 44-56% of the total indictments every year. However, "crimes against morality" encompasses all acts for which punishment is imposed under Sections 139-151 of the Prussian Penal Code, thus: adultery, bigamy, all degrees of incest, abuse by persons of trust, officials, and doctors, force, rape, seduction of immature persons, marriage under false pretences, professional unchastity, pandering, seduction of girls up to 16 years of age; public violations of modesty; distribution of unchaste books or images; and finally the two types of so-called unnatural unchastity that are still punishable, between humans and animals, and between male individuals. There we have, conservatively calculated, 15 different punishable offences that the statistics encompass under the same collective heading, and in spite of that, out of 19 1/4 million Prussians in 12 years only a total of 6879 such criminals could be proven such that - according to O. Hausner's comparative statistics from Europe - out of 39,500 Prussian subjects there was only one case of unchastity, while in Austria one case was found in 20,000, in France one in 36,000, in Bavaria one in 37,000. Since we are dealing with 15 offences under one heading, of which rape, force, and public violations of morality undoubtedly furnished the greater number of offences, then it is not too far out of line to assume that of the 6789 cases of various crimes against morality that came to trial in the 12 years, scarcely 600 cases of sodomia sexus and sodomia generis were found, the latter of which is acknowledged to be so rare in Prussia that it is hardly worth mentioning.
This numerical proportion allows two conclusions:
Either the enforcement of Section 143 in practice is infinitely milder and more lenient than it is in theory according to the wording of the paragraphs;
Or the criminal court prosecution stands in not even approximate proportion to the acts targeted by it.
For anyone who knows more deeply the situation in our large and small cities, and even in the country, and who judges more realistically than, so it appears, our legislators and men of science in general, will scarcely be mistaken if he counts approximately, for example, among the 700,000 residents of Berlin, 100,000 homosexuals, who probably indulge once a week in actions that, in spite of the concession of the Superior Court decision dated July 1, 1853, are hourly exposed to the full risk of the prosecution threatened by Section 143. Thus that would result in Berlin alone in 520,000 cases a year that have to fear punishment - and in contrast to this enormous number, the Berlin morals police - according to the well-known pamphlet "Die oeffentliche Sittenlosigkeit" ["Public Immorality"] - demonstrated as being charged in 1867: 57 cases of "unnatural unchastity". A conviction resulted in only 18 cases, while 35 cases were discontinued and 4 remained "unsettled", although not a single direct acquittal was made. But in 1868, in the entire city of Berlin, only one case of "unnatural unchastity" was indicted!
If this approximate calculation is extended to all 1212 large and medium-sized cities in Prussia, in proportion to their population - completely leaving aside the very small cities and the much larger number of rural inhabitants - we arrive at a numerical result for likely practiced, still punishable actions compared to which the actually criminally prosecuted cases is like a mosquito compared to an elephant! So thousands and thousands commit acts hourly, daily, that are still today threatened by punishment, but of all these perpetrators scarcely three or four dozen are captured by the law in a year! And these, not because they have been so excessive in committing the punishable offence, on the contrary; mostly only because they were so unfortunate or so clueless that they revealed themselves too much, because they were victims of denunciation, mostly also because they were too poor to maintain strictly sealed chambers, loyal servants, willing minions, to purchase the silence of their beloved and of all accomplices, or because they were too low in social status for the system to take pains with them. This nameless small minority is therefore annually the most severely punished martyr of the paragraph, the victim of the immense unpunished majority, the scapegoat of the principle of justice!
Thus, all in all, after that terrible conceptual confusion on questions
of sexuality has reigned for millennia, that emerged from the national
view of the theocratic Jewish people, "so that no droplet of semen should
be frivolously wasted, which might become a new Jew to increase the tribe
and make it strong against the enemy", for which reason polygamy, the keeping
of concubines, is allowed, in-law incest (Onan) is practically mandatory,
while masturbation and sodomy were declared capital crimes, which then
was heightened by historical Christianity - not by the teachings of Christ
- to the madness of original sin, of the crime, and of impurity - led the
church fathers and anchorites to self-mutilation - caused the doctrine
of the virgin state and made all carnal lusts appear as a temptation of
the Devil and a sign of heresy, while later celibacy and the categorization
of major and minor sins was added by hierarchical Christianity, then after
the backlash from the Reformation, which sanctioned legitimate marriage
alone, but pronounced the anathema over all other debaucheries as "unnatural",
and yet fell back into the teachings of original sin, the league with the
Devil, and witchcraft - thus after this conceptual confusion in this way
had reigned for millennia with the bloodiest fanaticism, changing chameleon-like
in different phases of orthodox blindness, and had devoured millions of
innocent victims - it was left to the nineteenth century, during the past
69 years, to escape this gruesome spell and to return the horribly exaggerated
bugbear to its normal natural truth. Thus, gradually, the following views
both about unchastity per se, and about so-called unnatural unchastity,
have broken ground as basic truths and as the results of practical experience:
1. The modern state of rights, which has only to protect rights, but has no other supplementary duties, for which other organizations in society exist and are called, must not concern itself with sexual issues, so long as no rights of others are violated by them.
2. Since the modern state of rights is built upon the consequence of this principle, and therefore, provided no rights of others are violated thereby, does not concern itself anymore by a long shot with any other forms of so-called natural and so-called unnatural unchastity, and does not impose punishment on coitus, any other figure of love, solitary masturbation, or so-called sodomy between men and women or between women and women, then logically and legally it cannot make an exception solely for sodomy generis and sodomia sexus between men and men.
3. All the less so, insofar as the unrestrictedness of modern society in all questions of sexuality has become so widespread that the majority does whatever it likes and that the state has to limit itself in the face of this only to protecting the rights of others.
4. All the less so, given that history teaches us that homosexualism has existed and continues to exist alongside normal-sexualism always and everywhere among all races and climates, and cannot be suppressed even by the most bestial persecution.
5. Because furthermore, both due to this fact and due to the essence of this drive, its sympathies and antipathies, it becomes evident that it is rooted in a capricious riddle of nature, thus it must be neither arbitrariness nor mere sophistication, but rather an innate and therefore irrepressible drive.
6. This assumption is further reinforced by the historical fact that so many important and noble characters of our general history have been in some cases suspected, in other cases accused of this drive, which, if it were not innate and therefore irrepressible, could not be reconciled with the other mental and physical skills of such important men, nor would it occur in rich and powerful persons where the free choice of pleasures was unrestricted.
7. In the face of this undeniable fact, we would either have to create such a contradiction in our cultural concepts that we would consider the same people, whom we esteem and honor so highly intellectually and for their historical character, at the same time to be entirely worthy of the disgrace of imprisonment; or we would have to invent two kinds of law, one for the mentally and socially powerful, and another for the rest of humanity.
8. But we are unable to list hundreds of significant bearers of intellectual and worldly history who were capable of committing such crimes as robbery, murder, theft, forgery, and fraud, and therefore what is criminal in this case lies in our assumption, not in their own innate feeling of justice.
9. If debauchery, unchastity, obscenity, and every other immoderation and greed encompasses "a degeneration and degradation of the human being", then that can only be meant concerning every act of unchastity; but from such a standpoint the very same action cannot well be excusable without punishment when it is committed between a man and woman or a woman and woman, yet at the same time a most heinous crime when practiced between a man and a man!
10. Ultimately, detailed investigation of the offense, so long condemned without a hearing, has proven with evidence that almost 9/10 of all homosexualists indulge only in mutual manustupration, which cannot be threatened with punishment, given that it is the natural right of every individual by himself and is also practiced with the opposite sex without punishment.
11. However, given the unfortunately so huge spread which solitary masturbation has achieved, particularly as a result of the horrifying teachings of prudishness, and given the uncommon harmfulness of this egoistic cowardice for the physical and mental health and the psychological condition, mutual manustupration can be deemed a salvation and more emotionally humane; for its engine is not merely the imagination - and therefore its consequences are physically and morally far less dangerous; for in every human reciprocity no such emotional coldness ever arises as a consequence, as in the solitary pumping out of the heat of life.
12. For all these reasons, then, the decision of the Royal Superior Court dated July 1, 1853 held mutual masturbation between men to be exempt from punishment.
13. Therefore, Section 143 had a meaning only against so-called unnatural unchastity between animals and human beings, and against direct imitation of coitus among male individuals.
14. But experience has taught that in our cultural circumstances unchastity between animals and human beings occurs only very rarely, that it is never practiced out of passion, but only due either to a lack of opposite-sex persons, or to boredom and boisterousness in lonely hours, and moreover that it is practiced only by persons of such a primitive self-awareness that knowledge of criminal laws cannot be imputed to them.
15. Experience has taught, however, with respect to sodomia propria between men and men that it is extremely difficult and rare to prove this act in particular, unless the perpetrators are caught in the act, and that it is even more difficult forensically to detect and identify physical symptoms as positively originating only from this action, and therefore a conscientious doctor must almost always refrain from making a definitive judgment.
16. From all of this, we have the crying contradiction between practice and theory, that thousands and even hundreds of thousands commit acts in obscurity - daily - hourly - for which a punishment is still prescribed, but from the punishment of which they can easily escape due to their position, their property, the comfort of their private life, and a hundred other advantages, while only the individual, the victim of denunciation or random bad luck, becomes a martyr and scapegoat for the protected majority, is ruined commercially by the mere investigative arrest, his family is scandalized, he is socially disgraced, so that exoneration does not rehabilitate him and, on top of everything, if he is by chance found guilty, he must suffer a difficult, painful, and disgraceful punishment, comparatively worse than a real criminal.
17. That the decision of the Royal Superior Court does not prevent this tragic possibility at all; for in a closed investigation it can scarcely be determined whether permissible mutual manustupration or still punishable sodomia sexus has occurred Since such a heavy punishment is applied for the latter, its possibility cannot remain uninvestigated. Therefore the next-best anonymous denunciation is sufficient to tear the thread of the sword of Damocles - Section 143 - and not only such a homosexual, who is accustomed to perform only mutual manustupration, but even a normal-sexual who is guiltless in this case in every respect becomes subject to the entire preliminary investigation, in itself dishonoring and damaging, and is called to account as a criminal for acts that - daily, hourly, so-called naturally and so-called unaturally - the entire world commits without punishment; and all those who do this carry their heads high in this feeling of security, and even sit as jurors in judgment of such an unfortunate, imposing the most severe and dishonoring punishments on him, because the former did the same act but not with the persons of the same sex!
18. This outrageous nonsense rises to even more outrageous injustice with respect to our time and our modern society:
a) in which marriage is possible for scarcely a third of the citizens;
b) which is kept in continual fear by the specter of overpopulation, but deems the sterile wasting of a drop of semen as a crime;
c) which for centuries has been tormented by the terrible scourge of syphilis, so that not only the health of the individual is severely threatened, but also that of all future generations, without there being any criminal laws against this social vampire to prevent its further spread, and without science so far knowing a specific remedy, and without us in our prudish cowardice having taken general and rational measures to rein in the horrible spread,
d) on the other hand, the fear of this scourge of normal-sexualism and also the criminal laws that stamp homosexualism as a crime, are to blame for and explain the terrifying spread of the physically and mentally so dangerous solitary self-pollution, so that perhaps a third of male and female persons in our society have succumbed to this truly enervating vice that ruins body and soul;
e) furthermore, our social conditions, the poverty and earning difficulty in our cities, the daily growing consciousness of the general right to existence and enjoyment in the face of the daily more provocatively spreading luxury, have long ago overcome many former concerns as prejudices; millions of human beings give their bodies unabashedly over to the most dangerous, obscene, exhausting, painful, and according to ancient concepts disgraceful exactions for pay, so that the selling of the body for mutual pleasure can hardly be a crime.
f) Finally, in times in which the innocent, weak female is subjected to every seduction, pregnancy, disease, death, or impoverishment, the poisoning of her future and every form of demoralization, without the state authority troubling itself in the least about it, as long as no rights of others are violated thereby, it is virtually ludicrous to try to protect the male sex, by nature physically and morally stronger, against his like, using draconian laws, stamping what are generally harmless obscenities as horrible crimes, punishing them with such a severe penalty and in such a disgraceful manner, while the same state authority does not trouble itself at all for the same male individuals when they succumb almost without exception already in school and in complete immaturity to solitary self-pollution, are seduced when barely mature by the next-best female, are debilitated, made ill, infected, and abused for every sort of so-called natural and unnatural unchastity, without any party having to fear punishment, and in the same act, practiced between male persons, both parties are subject to equally severe punishment, not only the seducer, but also the seduced!
All these contradictions that outrage all logic and all feeling of justice have already over the course of this century motivated the legislatures of France, Bavaria, Belgium, Wuerttemberg, Hannover, and now Austria as well, to set so-called unnatural unchastity totally equal to so-called natural unchastity, that is, to impose punishment for them only in cases in which the rights of others are violated.
Fifty-six years of application in Bavaria, thirty years of application in Wuerttemberg, twenty-six years of application in Hannover have proven in evidence, moreover, that moral conditions have not deteriorated in the least due to this tolerance.
Therefore, it was to be expected with full justification that, once a legislative unification of the major part of Germany was achieved by the events of 1866, - and Prussia, which calls itself the "state of intelligence", had attained hegemony, whose Penal Code of 1851 has already been paralyzed in the main section of its Section 143 by the decision of the Royal Superior Court, and where practice has already for a long time shown itself more moderate than theory - that finally the medieval legal nostalgia, like the earlier witch trials, would be entirely removed and the Penal Code for the North German Confederation would be entirely pure of this defect of injustice. And that was all the more to be hoped for under a Prussian justice minister, who, as the former Hannoverian justice minister, had already implemented this legal reform in his homeland and who knows its practical results!