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Mathias Kohan-Bernstein

Die Widernatürliche Unzucht. Ein Beitrag zur Kritik des deutschen Strafrechts.

Inaugural Dissertation for the Doctorate in Law at the High Juridical Faculty of the Ruprecht Karl University of Heidelberg, submitted by Mathias Kohan-Bernstein.

[No date. About 1910?]

Chapter I. Legal Theoretical Premises 7-13
Chapter II. Morality and Crimes against Morality 13-17
Chapter III. Unnatural Sexual Offense in General 17-27
Chapter IV. Homosexual Activity and Contrary Sexual Feeling 38-36
Chapter V. Conflict between the Current Views 36-64
    § 1. Metaphysical Views 38-46
    § 2. Moral Views 46-51
    § 3. Social Views 51-64
Chapter VI. Qualified Forms of Unnatural Sexual Offense 65-72
Literature and Sources 73-75

IV. Homosexual Activity and Contrary Sexual Feeling

The practice of criminal law has to do only with homosexual acts, without having the duty or the occasion to give special consideration on its own initiative to the psychological processes or conspicuous habitual peculiarities of the individuals to be judged in connection with them. That is the job of scientific biological and psychiatric observation, which already for a long time in the case of homosexual practices has laid special weight on the type and character of the sexual inclination and feeling behind them. To the extent that heterosexuals (normally feeling persons) are concerned, who, for various motivations to be specified in detail below, have given themselves over to same-sex intercourse, they are not considered by psychiatry at all; only the perverse direction of the sexual drive, only abnormally structured emotional life and potential accompanying anomalies in the development of physical secondary sex characteristics (feminine body form) are considered here. In this case we speak of homosexuality, inversion, contrary sexual feeling, uranism, etc. All these designations relate in general to homosexual inclination and not to homosexual activity, since, as has been confirmed repeatedly,1 same-sex intercourse (regardless or whether punishable or not) does not always have to be a necessary attribute and inevitable consequence of the former: there are persons who lead a chaste life or get properly married and have children and yet remain homosexuals. Conversely, we have just indicated that homosexual acts can often be performed without any trace of a contrary sexual feeling (homosexuality); they are usually designated as vices (perversity) and may in no way be taken for anomalies in the medical sense of the word. We believe that we may retain for this type of homosexual acts the designation of pederasty, without limiting the meaning of the word to coitus per anum (paedicatio). Accordingly, we reject the misleading language usage of Wachenfeld, who in his two works distinguishes conceptually and terminologically between homosexuality and contrary sexual feeling and in so doing erroneously cites v. Krafft-Ebing and other psychiatrists.2

The existence of contrary sexual feeling is so generally recognized in psychiatry, the case history is currently so rich, and actually observed and reviewed everywhere, that today there can no longer be serious doubt of the theory or dispute of the actual existence of "genuine" homosexuality. Pronounced contrary sexual feeling is expressed in an inclination toward the same sex with complete sexual indifference toward persons of the opposite sex. On this foundation, all sorts of variations of the perverse drive appear: from Platonic love and relative frigidity to an enormously strong libido with increased sexual activity and all conceivable forms of same-sex gratification. There appears vis--vis the female sex3 a lasting and hard-to-overcome impotence or even an overpowering nausea or repulsion that sometimes rises to the point of an outright horror feminae and makes all heterosexual intercourse impossible. With many Uranians, the entire psychosexual character is restructured in accordance with their abnormal sexual feeling (effeminatio) and even the bodily form frequently approaches that of the other sex.

We need not go deeper into the further description and usual classifications of these manifestations of contrary sexual feeling; likewise we are interested here no so much in the differences of opinion regarding the basic causes of homosexuality and the ongoing controversy between supporters and opponents of the Constitution Theory, so much as in the question that is important to us regarding the psychiatric evaluation of the relationship between the described perverse sexual drive and the accountability of homosexuals; all the more so because a sharp distinction between the Constitution and Acquisition Theories no longer reflects the state of psychiatric science, especially since even J. Bloch, once an energetic representative of the Acquisition Theory, is now know to have abandoned this standpoint entirely and, due to thorough and numerous observations of homosexuality, has come to assume its innateness.4 The battlefield now appears to have been won once and for all by the Constitution Theory, and, in a reversal of v. Schrenk-Notzing's words5, the Acquisition Theory may rather be used to explain only those cases where external influences are demonstrable, in the absence of hereditary predisposition or original natural constitution.6 By the way, we are far from underestimating the role that separation of the sexes in schools and the boarding-school system,7 seduction and excessive masturbation in adulescence or sexual supersatiation among debauchees may play in the creation and development of the sexual aberrations; only the rare numerical occurrence of such cases must not be exaggerated all too much in comparison to pathologically and biologically-caused innate homosexuality. But it should be pointed out to those who accord special weight to the distinction between acquired and innate homosexuality, that - no matter how different the evaluation of "culpable" and "non-culpable" homosexuality may be on principle from a moral standpoint - forensically it is completely irrelevant what causes have induced the morbid condition.8

According to the interpretation of § 175 by the Reich Court, all persons are subject to punishment under it who are guilty of actions resembling coitus, regardless whether they are pederasts or homosexuals. It had been objected by some psychiatrists and jurists that homosexuals should be protected by § 519, because this was not a lascivious, normally-determined decision of the will, but a symptom of degeneration, a morbid drive emerging on a hereditarily handicapped psycho- (or neuro-)pathological foundation. But even if one agrees without reservation to the latter assertion, it still remains unsettled to what extent the applicability of § 51 can be deduced for uncomplicated homosexuality not determined by other morbid manifestations, in other words, to what extent contrary sexual feeling can be equated with the morbid disturbances of mental activity that exclude free determination of the will? - One will become conscious of the importance of this question when one considers that if such general grounds of exculpation for homosexual acts are eventually affirmed, the sphere of applicability of § 175 would be reduced to pederasts alone de lege lata, and all homosexuals would be simply excluded from its scope. And the number of the latter - no matter how one regards the statistical attempts of M. Hirschfeld - is enormously large.10

It is clear right away that in all cases where contrary sexual feeling appears as a consequence or side effect of psychological illness, where compulsion conditions (compulsory ideas etc.) take a homosexual direction or where it occurs in connection with nervous disturbances and severe degenerative traits, the latter alone without any relation to the former appear as sufficient grounds for exemption from punishment, not only for homosexual acts, but for all offences committed in their presence.11 It is not this group that interests us at this point, but only the group in which homosexuality occurs alone, with an otherwise normal mental condition and intact intelligence.12 Is it possible then to interpret contrary sexual feeling as an independent species of disease, or at least to impute to it the significance of a morbid condition inducing merely a partial lack of accountability? - In that one usually shrinks from the first alternative, one appears all the more inclined to affirm the second.

Thus, for example, Professor Wachenfeld, assuming the morbidity of "genuine" contrasexuality, asserts that morbid ideas caused by it rule out the criminal judgment and free determination of the will with respect to homosexual acts.13 Schaefer is inclined to attribute to contrary sexual feeling the power always to overcome the free determination of the will, even if it alone is demonstrable, without other pathological symptoms, because here instead of the normal psychological determination a morbid pathological one would take its place.14 His argumentation leaves unclear, however, whether the criminal unaccountability would arise then for all offences or only for specific offences. And Numa Praetorius would like to see in the morbidity of the homosexual drive a sufficient proof of the unaccountability for homosexual acts and on this he bases his demand for general exemption of homosexuals from punishment by way of forensic psychiatry.15 Meanwhile, for Wachenfeld, disturbances of the conceptual life are decisive; for Schaefer and N. Praetorius, on the other hand, emotional and drive anomalies play this role.

It appears nonetheless that advocates of non-punishment for homosexuality16 do not distinguish clearly enough between what is desired from a legal policy standpoint and what is possible from a positive law standpoint. Even if the legislator does not use the word illness, but rather prefers a broader formulation - morbid disturbance of the mental activity - he nonetheless holds to the requirement of exclusion of the free determination of the will. Now, it is indisputable that emotional and drive anomalies are by themselves no less capable than anomalies of the conceptual life of undermining normal will motivation17; in our case, however, it is not true for contrary sexual feeling per se, but only in isolated cases of hyperaesthesia of the perverse drive, where there truly can be an overpowering compulsion that lames the ability to control it.18 Contrary sexual feeling, if it appears alone in connection with no other symptoms of physical or psychological degeneration, must certainly be held to be an anomaly in any case, but one which by itself still represents neither a disease nor a degeneration in the strict meaning of the word, although it should be designated as a morbid condition.19 Even v. Krafft-Ebing, who always saw in contrary sexual feeling a symptom of functional degeneration and considered it a partial manifestation of an hereditary encumbrance which was almost always associated with other degenerative symptoms, generally went no further than to assume a psychological inferiority and reduction of normal robustness in homosexuals20: however, according to more recent studies, which in recent times even v. Krafft-Ebing has sometimes endorsed,21 hereditary encumbrance is detectable only in a small proportion of homosexuals and the other degeneration symptoms can be observed only to a limited degree. Accordingly, the psychiatric diagnosis consists of the confirmation of a psychosexual abnormality whose origin is not yet clarified, a pathological phenomenon that nonetheless leaves the free determination of the will unaffected.22

So we arrive at the conclusion, in accord with Näcke,23 that there are no persuasive reasons for disputing the guilt-capacity and accountability under criminal law of homosexuals according to the existing statutes and thus for granting them an exceptional status without a legal-political argument. The attempts to give § 51 an undue position are likely explained by the effort to create as fast a relief as possible for a "special class of human beings" by means of drawing on psychiatry; almost always unsuccessful,24 these attempts signify theoretically - as the psychiatrist J. Salgo showed with persuasive clarity25 - an unjustified interference by psychiatric science in that area where in principle only legislation is entitled to speak.

Finally it should be noted that even the assumption of a merely partial unaccountability in practice is likely to lead to many intolerabilities, because affirming it in principle leads to exemption from punishment even in the case of the abuse of minors, abuse of relationships of authority and the like.26

* *

In addition to homosexuals, a considerable group of pederasts, composed of the most varied elements, have yet to be taken into account - a fact whose correct assessment demands a thorough discussion of the punishment of unnatural sexual offence and makes such a thorough discussion worth the trouble even if the struggle for the non-punishability of homosexuals had every prospect of finding its solution de lege lata. In contrast to homosexuals, in this case the same-sex intercourse is mainly attributable to societal causes, current societal conditions.27 Sometimes they are either accomplices of homosexuals - male prostitutes due to poverty, self-interest, or "obligingness" - or debauchees giving themselves over to pederasty out of hunger for excitement and the need for variety; in both cases, pederasty is carried out professionally and/or habitually. In addition, [there are] those categories of persons who carry on same-sex acts similar to coitus mostly in an episodic fashion, because for them it represents a stop-gap or surrogate, "a mechanical equivalent for female genitals": all those that turn to same-sex intercourse due to the absence of women, forced celibacy, and abstinence due to fear of infection, bad living conditions, etc. - namely in prisons of the old system, isolated military stations, boarding schools, monasteries, marine ships, hostels, mass accommodations, etc.28

Thus we are finished with the considerations of the "human material" that § 175 is supposed to deter and improve, and now, after a long digression which appeared indispensable to us due to the subject matter itself, we can turn to question of whether [the law's] existence is justified.

1 See v. Krafft-Ebing, Psychopathia Sexualis, 1903, p. 249; J. Bloch, Das Sexualleben unserer Zeit, 1907, p. 579; Hirschfeld, Der urnische Mensch, 1903, p. 95.

2 Neither v. Krafft-Ebing and A. Moll nor other authors cited by Wachenfeld in Homosexualität und Strafgesetz 6 provide any justification for his contrast of contrary sexual feeling and homosexuality, since they all consider the two to be synonymous and - entirely in accordance with the text - only give importance to the distinction between contrary sexual feeling and homosexual activity. Otherwise, v. Krafft-Ebing's evaluation, expressed in his discussion of "HomosexualitSt und Strafgesetz" in Allgemeine Zeitschrift für Psychiatrie 59, 1902 Literaturheft 70, may help to explain Wachenfeld's terminological innovations in the psychiatric field: "In the medical-psychological field one is unable to follow the author, because he uses terms quite arbitrarily, causes confusion and has no understanding for anthropological-clinical facts of contrary sexual feeling ..."

3 For understandable reasons we limit our arguments hereinafter to male homosexuality.

4 See J. Bloch, ibid., pp. 541 ff.

5 See v. Schrenck-Notzing, Die Suggestionstherapie bei krankhaften Erscheinungen des Geschlechtssinnes, 1892, pp. 153f.

6 This standpoint is represented in recent times by v. Krafft-ebing, A. Moll, P. Näcke, Kritisches Kapitel der normalen und pathologischen Sexualität, Archiv für Psychiatrie 32, 1899, H. Ellis, J. Bloch, A. Forel, and many others; moreover, v. Krafft-Ebing (see ibid. p. 209) is often inclined to assume even in these latter cases a latent or tardive innate homosexuality.

7 For example, A. Moll, ibid., p. 377; H. Ellis, ibid., p. 245.

8 In agreement, A. Moll, ibid., p. 436 and v. Schrenk-Notzing, Archiv für Kriminalanthropologie 2, 1899, p. 10.

9 § 51 of the Reich Criminal Code states: "A punishable act does not exist if the perpetrator at the time of commission of the act was in a state of unconsciousness or morbid disturbance of mental activity by which his free determination of his will was excluded."

10 See on this J. Bloch, ibid., p. 557. We have already mentioned the opposite opinion on p. 27.

11 See for example A. Cramer, ibid., p. 282.

12 According to the albeit disputed opinion of Hirschfeld,, ibid., p. 150, in the overwhelming majority of homosexuals, about 4/5 of the cases.

13 Wachenfeld, Homosexualität und Strafegesetz, pp. 101f. In his peculiar interpretation of homosexuality, this will be the case at that level where normal sexual intercourse becomes psychologically impossible.

14 Schaefer, ibid., pp. 300 and 302.

15 N. Praetorius, Monatsschrift für Kriminalpsychologie usw. 3, 1907, p. 560.

16 It need not be specially emphasized that Wachenfeld, who resorts to § 51 in order to preserve § 175, is not one of them!

17 See v. Liszt, ibid., p. 169.

18 So say A. Moll, ibid., p. 474, and others; in contrast to a general assumption of the pathological motivation and guilt-incapacity of homosexuals, A. Hoche says, Neurologisches Zentralblatt 15, 1896, p. 66, I think correctly: "It is an exaggeration to say that every contrary-sexual automatically finds himself in a 'state of emergency' acting under an 'overpowering compulsion'; ... quantitative estimation of the strength of drives is a difficult undertaking; but one thing should not be forgotten: that which in turn is supposed to be one of the markers of contrary sexual feeling, the determining influence of the sexual factor on the entire life of the individuals, is found also with sexually normal-feeling individuals if they allow the sexual drive to play a disproportionately important role in their existence through fantasy activity, or loving cultivation."

19 See Moll, ibid., pp. 426ff.; along with Hirschfeld, the following authors go even further: H. Ellis, ibid., pp. 241ff.; Bloch, ibid., pp. 541ff., P. Näcke, Monatsschrift für Kriminalpsychologie usw. 3, 1907, p. 480; Loewenfeld, Homosexualität und Strafgesetz, 1908, pp. 21ff.; Salgo, Die forensische Bedeutung der sexuellen Perversität, 1907, p. 34 and many others, who all understand homosexuality as a biological variation of the sexual drive and accordingly deny not only the degenerative but also the morbid nature thereof.

20 Thus v. Krafft-Ebing, ibid., pp. 242 and 406; if the sociopathicity and punishability of same-sex intercourse is affirmed in principle, in our view a legislative consideration of diminished accountability would take such a diagnosis into account better than § 51.

21 See J. Bloch, ibid., p. 543.

22 Thus in particular Moll, ibid., p. 474.

23 Ibid., p. 485.

24 See also Aschaffenburg, Zeitschrift für die gesamte Strafrechtswissenschaft 22, 1902, p. 843: "The mental specialists almost always stand de lege lata on the standpoint of considering homosexual acts to be not punishable only when they are based on a psychosis in the narrow sense (e.g. paralysis, mania)."

25 Ibid., pp. 36ff.

26 The same opinion [is] held by the Russian legal scholar V. Nabokoff, Jahrbuch für sexuelle Zwischenstufen, Jahrgang 5, 2, p. 1165.

27 See in this regard and the following Dittrich, "Päderastie" (Realencyklopädie der gesamten Heilkunde 18, 1898, pp. 200f.); Hirschfeld, ibid., pp. 15, 27; v. Krafft-Ebing, ibid., p. 415; the same author, Der Konträrsexuale vor dem Strafrichter, 1894, p. 9. In most of the documents, the line of distinction between homosexuality as a drive anomaly and pederasty in the broad sense as a type of gratification is not drawn very sharply; often there is not even an understanding of it: thus for example in Hüpeden, Gerichtssaal 51, 1895, p. 442 the origin of homosexuality is attributed to our current societal conditions.

28 Similar to pederasty, bestiality is mainly performed - not counting overstimulated and variety-addicted debauchees - out of a lack of opportunity for normal gratification of the sexual drive by intellectually backward farm-boys, cowboys, shepherds, etc.; even women are considered by the criminal code with regard to this type of sexual offence.