PENAL LAW
Penal law is the right of punishment. It is based on the ideas of culpability and expiation, and these are based on the idea of free-will, which is itself founded on a pure illusion, as we have shown above.
This simple reflection is sufficient to show the precarious position of our present penal law. The science of penal law has too long ignored the progress of humanity and of the other sciences. It is affected with incurable marasmus, because its foundations are laid in error. The idea of expiation was naturally developed on the basis of mysticism combined with the right of the stronger, and associated with the sentiment of vengeance natural to the low mentality of our animal ancestors. Among the latter the weaker was punished because he was the weaker: "Væ victis!" and order was obtained by force. But the visions of human imagination having urged man to create a god or gods in his own image, he attributed to the divinity the sentiments of anger experienced by man, and pretended that expiation was required for offenses against this or that majesty or human idea, transformed into an offense to the divine majesty.
This offense to the divinity was therefore only the nebulous expression of a developing social conscience in man, an obscure mixture of sentiments of wounded sympathy, adulation of the strong and great, and desire for vengeance and expiation. Till then man was accustomed to judge other men according to the right of the stronger, more or less mitigated by sentiments of family and friendship. His terror of natural mysteries—the forest, night, thunder, hurricanes, stars, etc., led him to imagine the intervention of occult powers, and later on of higher powers capable of judging good and evil actions, the ideas of good and evil being formerly very different from what they are at present. The functions of advocates or executors of the divine will were always, however, reserved for privileged men, who gave judgment in His name, either as priests, kings, or later on as judges. We may also note by the way that judgment can be given without belief in free arbitration, as is shown by the Mahometan fatalists and the judgments of Haroun-al-Raschid, for example. In fact, fatalism logically excludes the idea of free-will, for if everything is absolutely predetermined, the thoughts, resolutions and acts of man are also predetermined, which excludes all liberty.
Responsibility.—I have attempted to show in another work[9] that a rational penal law should in no way concern itself with the question of free arbitration. The fact that we feel free and responsible is not at all sufficient to justify the doctrine of Kant.
The question of knowing whether an absolute predestination (fatalism, regulating the universe in advance in all its details) exists or not, is a question of pure metaphysics, the solution of which is quite beyond human comprehension, and need not occupy us here. We must simply depend on the scientific postulate of determinism, i.e., on the law of causality applied to the motives of our actions, a law which is very much like that of the conservation of energy, and which admits of divers possibilities for the future, for it does not assume a knowledge of the first cause of the universe nor the will of a divinity.
We shall then understand that the complication of our cerebral activities, mnemic and actual, combined with the fact that a great part of them (and consequently of the motives for our actions) remain subconscious, must produce in us the illusion of free-will.
On the other hand, we shall find the measure of what we are to understand by relative liberty, in the plastic faculties of the activity of the human brain, which allow it to adapt itself as adequately as possible to the numerous and diverse complications of existence, and especially to social relations between mankind.
The most adaptable man is the most free, especially in the sense of active and conscious adaptation. There are also men who adapt themselves passively and are easily molded. This passive plasticity at any rate renders them capable of submitting to everything and only provoking conflict as a last resource. These individuals are no doubt less free, since they obey the impulses of others; nevertheless, their elasticity gives them a certain relative liberty, because they do not feel constraint and easily adapt themselves to laws and other social requirements. But the highest form of liberty, the moral faculty of higher adaptation, is not that of the human fox who exploits others for his own profit, but that of true higher intellects, capable of adapting their activity to the social requirements of humanity. On the contrary, the man who is least free is the one who, dominated by his passions and baser appetites, or by insufficiency of intelligence or will power, is thereby incapable of conducting himself reasonably, gives way to all temptations and impulses, falls into all kinds of snares, cannot keep to any resolution, and is in perpetual conflict with society.
What is the use of the theoretical belief in free-will in this case? This man feels subjectively as free, or often more free, than one who is more reasonable and more master of himself, and yet he is a slave! When, dominated by his psychic bonds, he violates the law, he is punished, but he himself resents the punishment as an injustice. The judge who condemns him and imagines he holds the scales of justice in equilibrium, only carries out the principles of an unjust law, a kind of mild retaliation, exacting moderate expiation. Or again, by exercising a right derived from old traditions based on religious ideas, he plays the part of proxy for the Deity and judges in His place. We might even say that a mail is in reality all the more free the better he realizes that he is not so, i.e., that his actions depend on the activity of his brain! At any rate he will then be less often deceived and will react in a more plastic manner.
The True Task of Penal Law; Its Traditional Errors in the Sexual Question.—Penal law has only one thing to do, that is to cut itself free from its roots and transplant itself on a social and scientific soil. There would then be no longer a penal law, but a law protecting society against dangerous individuals, and a law of administration for persons incapable of conducting themselves. Its task would be the complement of that of civil law. Henceforth the judge would cease to pass judgment on his neighbor and his neighbor's motives, acting as a proxy for God. He would no longer punish, but would content himself with protecting, restraining and ameliorating.
The history of psychiatry and sorcery proves that we are not exaggerating. It is not very long since the insane were regarded, not as persons suffering from disease, but as criminals and sorcerers, and were treated by punishment and exorcism. The ancients, on the contrary, especially certain Greek and Roman physicians (notably Caelius Aurelianus) had already recognized that insanity was a disease of the brain, and had distinguished its different forms.
Even at the present day, we find among the Catholics and among certain Protestant sects, as among savages, a belief in sorcery, and if this belief got the upper hand, prosecution for sorcery—exorcism and other forms of cruelty—would soon become the fashion.
Before the sixteenth century prosecutions for sorcery were universal, and remained very common for a long time afterwards. It is only since the time of the French Revolution that insanity has been recognized as a mental disease. Even in the nineteenth century a German alienist, Heinroth, punished the insane like criminals. The atrocious prejudice of the people against the insane dates from the time of prosecution for sorcery.
Even now we are the slaves of a prejudice which holds a legal conviction sufficient to dishonor the prisoner and stain his character for the rest of his days. Hans Leuss' book, Aus dem Zuchthause (From the prison), 1904, is very instructive on this point. Condemned to prison himself, the author makes some wise and dispassionate observations which give food for reflection. I may also quote the words of Doctor Guillaume, who was for a long time superintendent of the penitentiary at Neuchatel, and who is now director of the Swiss federal bureau of statistics at Berne. The question we are dealing with had been treated in a discussion in which I took part, and to which Doctor Guillaume had listened silently. At the conclusion, he said to us: "Gentlemen, in the course of my life I have become acquainted with a large number of convicts, but I have never been able to discover among them more than two classes of individuals; the one class were diseased, and the others ... ah! the others; the more I study their cases and their personality, I ask myself if I should not have done as they did under the same circumstances!" It is unnecessary to say that Doctor Guillaume did not mean to establish two clearly marked classes, for most criminals represent a mixture of both; but his main idea gives a good idea of the question of penal law.
How sexual questions lead to conflicts with penal law, how penal law judges them, and how it ought to judge them after what we have just said, I can only refer to what I have said concerning civil law. Our present penal law is aware of singular sexual crimes and often punishes them from curious motives.
When a poor imbecile, ridiculed by women and overcome by his sexual appetite, copulates with a cow, the latter is not injured in any way; neither is the owner. Moreover, the question of property does not trouble the judge, for he punishes sodomy even when the culprit owns the animal. How does the law obtain the right to punish an act which does no harm to any one, nor to society, nor even to an animal? It is evidently a vestige of religious mysticism, something like punishment for sinning against the Holy Ghost. The sins of Sodom and Gomorrah, they say, caused the wrath of God, who destroyed these towns for this reason. According to the legend, sodomy was a vice of the inhabitants; is this why it is punished at the present day? But the masturbation of Onan, according to the Bible, also caused the wrath of God; why then do not our present laws institute punishment for those who practice it?
In many of the Swiss cantons and in Germany, sexual connection between men is prosecuted by law. The German legislators have even recently discussed the question whether punishment should be enforced only when the penis of one man is introduced into the anus of the other (pederasty), or whether indecent contact and mutual onanism are sufficient to justify punishment.
Our penal law is thus concerned with the question whether it should punish or not, according as this or that mucous membrane or part of the skin is used for the satisfaction of a morbid sexual appetite! These are truly singular points for a legislator to decide, compelled, in spite of his incompetence, to play the part of physiologist, anatomist and psychologist!
If I am correctly informed, the German legislation is inconsistent in punishing sexual intercourse between two men, but not between two women. These examples suffice to show what blind-alleys a penal law leads to, the basis of which is vicious and which is guided by the traditions of mysticism.
Quite recently, in the Swiss journal of penal law, a jurist seriously upheld the necessity for the conception of a crime against religion! Ideas of this kind would lead us to punish suicide, like the English.
We will now proceed to analyze the facts from the point of view of their true social value.
Limits of Penal Law in the Sexual Domain.—If we would avoid injustice and ridiculous contradictions, we should keep to the principle that penal justice has only the right to intervene in cases where individuals or society are injured, or run the risk of being injured. It is also necessary to examine, in each case, whether the person who has committed the offense was not irresponsible and affected with mental disease at the time; or whether his responsibility was not diminished, i.e., whether he was not seriously abnormal without being quite insane. The conception of responsibility, necessarily relative, should be understood in the sense of relative liberty, which we have defined above.
According to the result of the inquiry (culpability being proved) the judge will have to decide how society can be best protected against the repetition of such acts, and how the culprit may be most easily improved, provided he is capable of improvement.
If, for example, the culprit is an inebriate, his detention in a home for inebriates will protect society and benefit the individual much better than all the fines and imprisonments at present in force.
If he is an incorrigible recidivist, incapable of resisting his criminal impulses, the law should keep him under observation in a safe place, or deprive him only of certain dangerous liberties. It is not so difficult to decide these questions as the public imagines. The antecedents of the criminal, his previous convictions, and a careful study of his psychology will nearly always lead to a clear diagnosis and prognosis. In this case a mutual understanding between psychiatrists and jurists will produce excellent results. It is needless to say that if it is only a case of transient cerebral obnubilation, such as sunstroke or somnambulism, etc., the culprit should be acquitted.
Rape, etc.—Normal coitus may render a penal action legitimate when it is obtained by force or stratagem (rape, abuse of a feeble-minded or hypnotized person, etc.). It is evident that measures of protection against such acts are urgent, and that persons abused in this way should have the right to heavy indemnities. What we require is not so much extenuation of penalty for the culprit as greater protection for his victims.
In cases of rape, when the woman becomes pregnant against her will, I am of opinion that artificial abortion should be allowed by law as an exceptional measure. We cannot expect a woman to have a child imposed upon her by a man's violence, especially when she is unmarried, and oblige her to bring it up, from the simple fact that she conceived it. It should be the same in cases of abduction of female minors.
When, on the contrary, a male minor seduced by an adult woman, makes her pregnant, it is the woman only who is responsible for the maintenance of her child, and there are no reasons to accord her the right of abortion, for it is she who desired the sexual act. The close bonds which exist between the child and its mother justify such legal dispositions.
With regard to civil laws, we have mentioned the case of venereal infection after coitus. In this case civil indemnity would be most equitable. A penal action could only be based on prosecution by the injured party, unless it was a question of directly criminal intent—infection for vengeance, for example.
Incest.—Under the heading of consanguineous marriages, we have seen to what extent the conception of incest should be limited, in respect to civil law. The grave cases of incest are those between parents and children. Their normal causes are mental anomalies, alcoholism, proletarian promiscuity, or isolation of a family in some remote place. Incest is common, in Switzerland especially, among the inhabitants of isolated mountain chalets. I will give a few typical and genuine examples of incest giving rise to penal actions:
(1). A drunken and brutal husband persecuted his wife with excessive coitus. The latter then gave him her own daughter to satisfy his violence.
(2). An inebriate woman induced her own son, aged seventeen, to have intercourse with her. Infuriated at the idea that his mother had made him her lover, he murdered her one day when he was drunk. Condemned as a parricide, this young man conducted himself in prison in a model manner. Alcohol, combined with his incestuous seduction, had made him the murderer of his mother.
(3). In a family composed exclusively of imbeciles and psychopaths, some of whom were put under my care for treatment, incest was practiced among nearly all of them; between father and daughters; between mother and sons; and between brothers and sisters.
The last case, and many others, show that incest is not the cause but the effect of mental disorders. This does not mean that the offspring of such unions are not slightly tainted by the mere fact of such concentrated incest, but these cases are comparatively so rare that they do not contribute to any appreciable extent, as incest, in causing degeneration of the race; the factor which causes degeneration is here mental disease, which arises from other hereditary causes, chiefly of blastophthoric origin.
From what we have said it results that a penal action for incest should only take place in the case of minors or insane persons, abuse of strength or power, or rape. The measures of civil law should suffice to reduce other cases of incest to a minimum.
The disgust which the generality of men feel for sexual union between brothers and sisters, and especially between parents and children, is the best protection against incest. The elimination of alcoholism, the superintendence of the insane, and the improvement of our social organization are much more likely than penal laws to lead to the gradual disappearance of incest.
Assaults on Minors.—All assaults on minors should naturally be prosecuted. But prosecution should take a different form according as the culprit is affected with a pathological perverse disposition, or whether it is simply a question of abuse of confidence committed by a normal man. A master who, having no sexual anomaly, commits assaults on young girls, his pupils, should be deprived of the right of teaching in girls' schools, for it is only there that he is dangerous. If, on the other hand, he is affected with perversion (pederasty, etc.), further measures for protection should be taken against him; according to the circumstances.
Sexual Perversions.—When we pass, on to sexual perversions, the inconsequences and mysticism of our present penal law become still more apparent. This code often prosecutes and punishes sexual actions which do no harm to any one, or which two persons practice of their own accord. Such cases may be suitable for moral or medical treatment, but should never justify a penal prosecution. This applies to all the manipulations of onanism, pederasty, masochism, fetichism, etc., which take place between adults by mutual agreement.
What is the use of prosecuting inverts? It is a fortunate thing for society that these psyhcopaths are contented with their mutual sexual intercourse, the result of which is sterile and therefore does no harm to posterity. The real crime is the marriage of an invert to an individual of the opposite sex, and yet this crime is sanctioned by the law! It is a crime against the normal conjoint and against the children who may result from such an unhappy union. By severely punishing homosexual intercourse, the penal laws of many countries provoke the lowest form of blackmail, as Krafft-Ebing, Moll, Hirschfeld and others have proved by numerous examples, and as I have myself confirmed among many of my patients.
It is quite another thing with abnormal or perverse forms of the sexual appetite, which can only be satisfied against the will of their object, or by injuring it more or less severely. Here it is the duty of the law to organize energetic measures of protection; not with a view to punish the pervert, who is a diseased person, but to protect his victims in time.
We will first deal with sadism; secondly with the violation of children. Here a very delicate question arises. In the case of such terrible sexual appetites we should not wait for victims before taking action. On the other hand, we cannot punish a man, nor even take administrative measures against him, simply from the fact that he possesses a dangerous appetite, especially if he is in other respects well-behaved and conscientious, and strives with all his might against his perversion. I have treated a patient who suffered from a terrible pathological appetite of this kind. He was a highly moral man who never harmed any one, but was in a state of despair over his affliction, which he resisted with all his power, seeking relief in masturbation when his passion became too violent.
In such cases, the moral sentiments of an individual offer sufficient social protection, and it is neither the right nor the duty of the physician to denounce him. But he should advise the patient to retire to an asylum to avoid committing a crime, if he feels that he cannot restrain his passions. It is very rare for such cases to come to the knowledge of the public, for these patients prefer to suffer in silence or to commit suicide; but they are none the less instructive and characteristic.
At other times dangerous perversions are discovered by chance, the pervert, instead of resisting his passion, seeking opportunities to satisfy it without discovery. In such cases strong measures should be enforced. Unfortunately, sadists are very well aware of the dangers they run, and know better than any other criminals how to commit their crimes without being discovered. As soon as the perpetrator of a sadic crime is discovered, or simply an attempt at sadism, he should be arrested and placed where he can do no harm. The question of castration arises here: but we do not know yet how far this protects the sadist and his victim against recurrence. If this operation proves efficacious it should never be neglected.
The exhibitionists present great difficulty. They are not dangerous, since they touch nobody. Their "victims," if they can be called so, are girls or women before whom they expose their genital organs and masturbate. No doubt modesty may be much offended by such acts, especially in young girls and children; disgust and fear may also harm them; but I think the law is too severe in these cases, for there is no question of an injury which is dangerous in itself. I have known little girls who have been frightened several times by exhibitionists, but I have never known them injured by the disgust which they experienced. The affair is too ridiculous and too ugly. It would be sufficient to send exhibitionists to an asylum for short periods, unless extreme weakness on their part necessitated prolonged detention.
Simple necrophilia should be treated in the same way by penal law. But this perversion is more dangerous on account of its relationship with sadism. There are some sadists who are only necrophiliacs for fear of becoming assassins. Such individuals are very dangerous and should be kept in confinement.
The fetichists are, on the contrary, generally very innocent. At the most they might be prosecuted for theft when they take away their fetiches. One of their worst misdemeanors is that of cutting off the hair of young girls.
Concubinage. Prostitution. Proxenetism. White Slavery.—We have already seen that concubinage should never be punishable in itself, although it is so in some countries. We shall not again return to the question whether prostitution should be the object of judicial and penal actions. Proxenetism and white slavery, on the contrary, cause grave injury to the rights of many individuals and should be made criminal offenses; for they are crimes against society and the individual, and committed for lucre. It cannot be legal to do commerce with the body of one's neighbor: this is a crime which is closely related to slavery and similar abuses. (Vide Chapter X.)
The law should punish all public solicitation, obscenity or sexual brutality, but the punishment should take a milder form. The sexual act and everything connected with it should be absolutely free, but a man has no right to provoke or annoy his neighbor by indecent sexual invitations if the latter does not wish to respond to them.
It is, however, extremely difficult to fix the limits of what is licit, for prudery may also go too far and regard the most innocent allusions as provocations. It is absolutely necessary to leave a margin for normal sexual invitations. All that is required is that they should not overstep the limits of recognized propriety, so long as there is not mutual agreement between the two parties. (Vide Flirtation, Chapter IV.)
Lewdness. Pornography.—The question naturally presents itself of knowing how far it is permitted to proceed publicly with a mutual agreement without causing offense or injury to other parties. On the whole, our customs are free enough in this respect, and a greater liberty in public flirtation would be inconvenient. For instance, lewd exhibitions, coitus, etc., could not be allowed in public places. Children especially should be protected against such excitations of the sexual appetite, and it is necessary to fix a legal distinction between what is offensive and what is not offensive to public propriety or modesty.
Simple police regulations are sufficient for this purpose, but they are very necessary to protect women and children, and occasionally young men, against importunities or sexual obsessions, against sexual solicitation, or even against assault or other offenses, such as incitement to masturbation, obscene words and gestures, etc.
It is, no doubt, very difficult to define the limits. Our modern customs have left a large margin for pornography, which they treat like a spoiled child. The most dangerous form, however, is not that which flaunts itself in shop windows, by advertisements and placards, in public kiosks and dancing rooms; but the refined and æsthetic pornography which appears in the form of elegant engravings, erotic novels and dramas, under the cloak of art and even under that of morality.
Unfortunately, the public is a very bad judge of these things. Certain books have openly and fearlessly described the sexual vices of our time—for example, Zola's novels and the dramas of Brieux—and these have been stigmatized as pornographic. As a matter of fact their authors in no way merit such a reproach. Such works in no way encourage immorality; on the contrary, they inspire disgust and a healthy and holy terror at the perversity of our sexual customs. No doubt such works may have an erotic action on ignorant and low-minded persons. The Tyrolean peasants, in their moral indignation, have been known to destroy the marble statues of women erected in public places. Such acts serve no purpose, for prudery will never rid the world of eroticism; it will only increase it by leading to hypocrisy. We have something better to do than persecute and insult true art and men of talent or genius who expose our social perversions.
Pornography is quite another thing. It is not contented with representing the æsthetic, licit, and normal side of natural eroticism. It does not depict sexual vice so as to emphasize its ugliness and its tragic consequences, but to glorify it. Whether it is represented as brazen nudity unadorned, or enveloped in a transparent veil which reveals everything it pretends to hide; whether it reels in bacchanalian orgies; whether it appears in brilliant fancy dress illuminated by electric lights, or in the discreet light of a fashionable boudoir; whether it is clearly revealed or equivocal, perverted in one way or depraved in another; in all its forms its aim is to tickle, to excite, to seduce, to allure, by arousing lewdness and inflaming its lowest passions.
The pornographic dishes are often served up with a sentimental and moral sauce which naturally does not tend to hide the flavor of the meat—for then all its charm would be gone—on the contrary it increases its spicy quality by means of contrast, at the same time making the product more marketable; this hypocritical disguise giving it a certain varnish of propriety. The trick of clothing pornographic articles with the mantle of virtue may deceive the artless, and give the less artless excuse for buying them without putting themselves to any inconvenience. In such cases it is extremely difficult to act without injustice and without doing injury to art and science by vexatious measures. This requires much tact and rare perspicacity.
Other Sexual Misdemeanors.—Many sexual assaults are committed on the insane and feeble-minded, in the hope that they will not defend themselves and denounce the criminal. We have mentioned the case of inverts who become attendants in lunatic asylums in order to satisfy their appetites. Such crimes should be classed with those committed against minors. In the first place it is necessary to take into account the special dangers they present, and in the second place, the personality of the criminal, his capacity for repentance, improvement, and self-control.
Artificial Abortion.—It is a difficult question to decide whether a woman should have the right to dispose of the embryo she carries in her womb, and the duties of society with regard to this question. It is certainly the duty of society to protect the child as soon as it is born. In this case the laws cannot be too severe in protecting the child from unnatural parents, or from the "baby farmers," whose business is to get rid of the infants by starving them or exposing them to disease.
It is the same with analogous abuses which we have mentioned with regard to civil law. These crimes or misdemeanors very often result as much from the economic organization of our society, as from want of protection for infancy and girl-mothers, as well as from the shame with which the latter are branded by our hypocritical customs.
The question becomes more difficult with regard to the embryo before birth. Should the law punish artificial abortion? Opinions on this question vary. I have already said that in cases of rape, and forced pregnancy in general, the right to artificial abortion should be conceded to the woman. On the other hand, I think it should be prohibited on principle when the fecundating coitus has been voluntary on both sides, and when there is no medical reason for such a measure. In principle, the human embryo, when once conceived, should have the right to live. Birth is only an episode in its life. This generally takes place at the end of the ninth lunar month of pregnancy, but a child born at the seventh month is often viable. It is, therefore, arbitrary not to recognize the right of the embryo to live. On the contrary, the right that a woman has to dispose of her body would seem to outweigh this, when conception has been imposed on her by stratagem or violence. In fact, the right of the embryo to life should depend on the wish of the bearers of each of the two germs by which it is formed, at the moment of conception.
On the other hand, numerous exceptions to the above rule should be allowed, and doctors should not be too severe, for it would be for them to decide in most cases whether artificial abortion was licit or not. Some pregnancies are a veritable misfortune for the parents and offspring, when the bodily and mental health of the mother or child, or both of them, is in danger. When a lunatic or an idiot, married or not, makes a woman pregnant, artificial abortion should be allowed; also in all cases when an insane or epileptic woman becomes pregnant.
An analogous case is that where a drunkard renders his wife pregnant against her will, especially when he is intoxicated at the moment; for the offspring runs a great risk of blastophthoria.
It is needless to say that abortion should be permitted whenever pregnancy seriously endangers the life or health of the mother, or when a grave disease in the mother condemns the child to become an invalid. On the other hand, such indications should not be acted on too lightly; a rational limit is here a matter of practice and common sense, combined with medical science.
The Right to Live of Monsters, Idiots, or the Deformed.—The preceding remarks naturally lead us to the question whether children who are born invalids, deformed, or idiots, etc., should be necessarily condemned to live by the law, and whether special dispositions should not be made for such cases.
The obligation to preserve, often by means of all the resources of medical science, miserable creatures, born as cretins or idiots; children with hydrocephalus or microcephalus, without eyes or ears, or with atrophied genital organs, etc., is an atrocity sanctioned by the law. Would it not be better to allow these miserable beings to be suppressed by means of a painless narcosis, with the consent of the parents and after an expert medical opinion, instead of condemning them by law to a life of misery? Science has proved that every congenital malformation of the brain is as incurable as that of any other organ.
Here again our legislation is fettered by ignorance and religious dogma. On one hand, immense armies are organized to kill the most healthy men by thousands and tens of thousands, and many more thousands are abandoned to famine, prostitution, alcoholism and exploitation; on the other hand, medicine is expected to employ its whole art and efforts in prolonging life as long as possible and thus martyrizing miserable human wretches, degenerate in body and mind or both, often when they cry out for death!
Large asylums are built for idiots, and there is much joy when after many years of persevering effort some devoted person succeeds in teaching these beings, whose mentality is far inferior to that of a monkey, to repeat a few words like a parrot, to scribble some words on paper, or to repeat a prayer mechanically with their eyes turned toward heaven!
It is difficult to compare these two facts without feeling the bitter irony of what are euphemistically called our hereditary customs. In truth, the nurses and teachers who devote themselves to the education of cretins and idiots would do better to occupy themselves in some manual work; or even leave the idiots to die, and themselves procreate healthy and capable children in their place! But this question does not properly belong to our subject.
The Rights of the Embryo.—A distinction is generally made between artificial abortion practiced in the first months of pregnancy and that induced in the later months. When the child is born viable, the term premature labor is used. When this is induced with the object of getting rid of the child the penalty is much more severe than for abortion, for it is regarded almost as infanticide.
For this reason, and owing to the difficulty of the whole question, a mother should never be given the right to destroy the embryo or child in her womb, excepting in cases where pregnancy has been forced upon her. Each case should be submitted to a medical examination, and a doctor's certificate should be required. This is all the more indicated since our present knowledge makes it easy to prevent pregnancy by anticonceptional measures. Society is, therefore, entitled to demand that a mother who has voluntarily conceived a child has no right to interrupt its development, i.e., to kill it. If, as we hope, we shall eventually obtain more extended rights for women and greater sexual liberty in general, even in marriage, the reasons justifying artificial abortion, apart from medical or hygienic measures, will become more and more rare.
The stigma of shame which is branded on illegitimate maternity unfortunately justifies many cases of abortion and even infanticide. Things ought to change in this respect, and in the future no pregnancy ought to be a source of shame for any healthy woman whatever, nor furnish the least motive for dissimulation.
If the objection is raised that I am inconsistent; that every man, and consequently every woman, should have the power to dispose of their own body on every occasion, and that penal law should therefore take no cognizance of artificial abortion, I reply that this does not apply to the case in point; for it is here a question, not of one body, but of two or more (in the case of twins). From the moment of conception the embryo acquires a social right which merits all the more protection, the more its possessor is incapable of looking after it.
Adultery.—Adultery, which even at the present day is often considered as a crime or misdemeanor, should be simply regarded as a reason for divorce. We have already treated the question with regard to civil law, and have shown the futility of trying to obtain fidelity by law. In my opinion, the misdemeanor of adultery should be entirely abolished from penal law. When it is complicated by fraud or other crimes, it is the latter only which are concerned.
Human Selection.—The indirect danger to which children of bad heredity are exposed constitutes a grave social evil. At present, penal law is absolutely impotent in this matter. We have seen what civil law might perhaps effect, and what is already done in some countries. In another chapter we shall discuss much more appropriate measures for improvement in this domain.
We have already mentioned castration and certain cases in which it might be practiced. These cases will always be very limited, and it is on the basis of social morality and hygiene of the race that the question of conception should be regulated in a rational and voluntary manner. We shall obtain much more in this way than by legal measures, which are always lame because they interfere with individual liberty. We must never forget that the law is only a necessary evil, and often a superfluous one.
In conclusion, I may remark that penal law should be combined, like civil law, with administrative measures, to protect both the individual and society in sexual matters, at the same time watching over the interests of future generations. But it should only do this as far as the weakness and eroticism of men hinder a similar or better result from being obtained by moral education, combined with rational intellectual instruction.
APPENDIX TO CHAPTER XIII
A MEDICO-LEGAL CASE
The following case occurred in 1904 in the Canton of St. Gall, in Switzerland, and confirms my opinion:
Frieda Keller, born in 1879, was the daughter of honest parents. Her mother was mild-mannered and sensible, her father loyal, but harsh and sometimes violent. Frieda was the fifth of eleven brothers and sisters. She was a model scholar. At the age of four years she had meningitis which left her with frequent headaches. In 1896-97 she learnt dressmaking and helped at home in the household work. When she was free, she did embroidery to help her family. Afterwards she obtained a situation in a dressmaker's shop at St. Gall, where she got sixty francs a month.
To increase her income she worked on Sundays as a waitress at the Café de la Poste. The proprietor, a married man, began to persecute her with his affections, which she had great difficulty in avoiding. She then entered another shop where she got eighty francs a month. One day, in 1898, when she was then nineteen, the proprietor of the café succeeded in seducing her, and on May 27, 1899, she gave birth to a boy at the Maternity of St. Gall. She had confessed her misfortune to her parents, and her mother had pity on her. Her mother had also been seduced and rendered pregnant at the age of fifteen; abandoned by her seducer she committed infanticide, and was sentenced to six years' imprisonment; as she had always been well-behaved, the tribunal had recognized that she acted "less by moral depravity than by false sentiment of honor." Frieda, who was fond of her mother, knew nothing of this history. The father was very hard toward his daughter and refused her all help and pity. Twelve days after her confinement she took her child to the Foundling Hospital at St. Gall.
Her seducer then promised to maintain the child, but never paid more than eighty francs. After a time he left the town and was seen no more. The circumstances under which Frieda became pregnant were not fully inquired into and her seducer was ignored. It was not absolutely a case of rape, but of taking a poor, weak and timid girl by surprise.
Frieda Keller felt nothing but disgust for her seducer. Later on the latter would no doubt deny the fact of his paternity; but he had tacitly admitted this by the payment of eighty francs.
Frieda had to pay five francs a week to the Foundling Hospital and also thirty-four francs to her married sister. In 1901 her father died, and in 1903 her mother. Frieda inherited 2,471 francs from her father, but this sum was tied up in her brother's business and he never sent her the interest. It is characteristic of her mentality that she never attempted to exact it.
Then began for this unfortunate young girl a life of struggle and despair. She was possessed of two ideas. On the one hand she could no longer maintain her child, and on the other hand would not admit anything from shame. They would not keep the child in the hospital after Easter, 1904, when it would reach the maximum age of five years. What was she to do?
Frieda Keller was then evidently in a pathological state of mind, which was upheld by her defender, Doctor Janggen. She wished to keep her secret and provide for the maintenance of the child; but she took no steps in this direction. She did not seek for cheap lodgings, not for a rise of salary, nor even for the money illegally detained by her brother for his own profit. She never spoke to her married sister, nor to any one, of her desperate position. The father of her child had disappeared and she never gave information against him for fear of divulging her secret. Moreover, the law at St. Gall only admitted the charge of paternity against unmarried men! She found no practical way of disposing of her child. After Easter, 1904, when the child was discharged from the hospital, she was haunted by a single idea—to get rid of the child. She struggled for a long time against this obsession, but in vain, and it finally became a resolution.
Although she was fond of her sister's children, she did not love her own. She rarely visited her child and appeared to take no notice of it. This woman who was well-disposed toward every other creature, who was of exemplary conduct and would not hurt a fly, never even spoke of her own child. On April 9th she wrote to the hospital that she would come and fetch the child.
A few days before this she took a long walk in the woods; the next day she wept at home, while looking for some string. Alone with her despair, she had definitely made her terrible resolution. She said afterwards, at the assizes:
"I could not free myself from the feeling that I must get rid of the child."
She then went to the hospital, after having bought new clothes for the child, and told the authorities that an aunt of hers at Munich would take care of the child. She then took the child to the woods. Having found a lonely spot she sat down for a long time while the child played in the wood. For some time she had not the courage to do the deed, but at last an irresistible force, as she said, urged her to do it. With her hands and shoes she dug a grave, then strangled the child with string, with such force that it was difficult to untie the knot on the dead body afterwards. She knelt for some time by the child till it ceased to give any signs of life, then buried it, and returned home restraining her tears with difficulty.
On the 1st of June she wrote to the hospital that the child had arrived at Munich. On the 7th of June the body was exposed by rain and was discovered by some Italians. On the 14th of June she was arrested. During the trial she declared that her action had been the result of her inability to maintain the child, and the necessity of keeping her secret. This secret was the shame and dishonor of involuntary maternity and illegitimate birth.
All the witnesses spoke in favor of Frieda Keller and gave evidence that she was well-mannered, intelligent, hard-working, economical, of exemplary conduct and loving her sister's children. She did not deny the premeditation of her crime, and in no way sought to diminish her responsibility.
According to the law of St. Gall, such cases are punishable with death; but Frieda Keller's sentence was commuted to penal servitude for life.
Such are the facts of this case taken from the official report, and from an extract published by M. de Morsier in the Signal de Genève.
We are compelled to exclaim with M. de Morsier that a legislation which, in such a case, condemns to death one who can justly be called a victim, while leaving unpunished the real culprit, is calculated to destroy all belief in justice in a democracy which calls itself Christian. It is a justice of barbarians, a disgrace to the twentieth century. The tribunal and the juries have enforced to the letter an article in the Code, and this is called justice! We may well say: Fiat justitia, pereat mundus.
Frieda Keller was no doubt in an abnormal condition of mind; she probably suffered from the influence of auto-suggestion which became an obsession. Such cases are not uncommon. This is clearly shown by the absurdity of her manner of acting, which was both useless and pernicious, while she might easily have got out of her difficulty in other ways. If our judges and juries had a little more knowledge of human psychology and a little less of the Code in their heads, they would have had some doubts on the mental integrity of the accused, and would have ordered an expert examination by a mental specialist. But, apart from this point, I put the question—can we expect from a woman, maternal sentiments for a child resulting from sexual surprise bordering on rape?
In the preceding chapter I have demanded the right of artificial abortion to women rendered pregnant by rape or against their will, and I think the case of Frieda Keller supports my contention. I do not intend to justify the assassination of a child already five years of age; but I wish to point out that the absence of maternal love is quite natural in such a case. It is precisely the instinctive aversion of Frieda Keller for her child, otherwise inexplicable, which shows most clearly that it was a case of imposed maternity, or sexual satisfaction on the part of the father alone.
The tragic case of this unfortunate woman well illustrates the brutality and hypocrisy of our customs regarding the sexual question, and shows what terror, shame, torment and despair may be caused by the point of view of the so-called rules of morality. In the presence of these facts I do not think I can be accused of exaggeration: it is only parchment-hearted jurists and government officials who can remain indifferent in such cases.
Penal servitude for life for the poor victim of such cruelty is a kind of "mercy" which rather resembles bitter irony. The law of St. Gall can do only one thing to repair the evil; that is to change its laws and liberate the victim as soon as possible.
In ordinary infanticide the true assassin is not usually the mother who kills her child, but rather the father who abandons the woman he has made pregnant, and disowns the result of his temporary passion. In the case of Frieda Keller, maternal heredity, the results of meningitis, stupidity, irreflection, want, shame, fear, a pathological obsession, and finally the unworthy conduct of the father, all combined in making this unfortunate girl a victim rather than a criminal. Her child was not only a source of great anxiety but also an object of instinctive repulsion.
How is it that such a brave and industrious woman can feel repulsion toward her own child? If the judges had asked themselves this question and had replied to it without prejudice, forgetting for the moment their Code and prejudices, they would not have had the courage to condemn the woman to death, nor even to condemn her at all; for their conscience would have clearly shown them the true culprits—masculine brutality, our hypocritical sexual customs, and the unjust laws inspiring terror in a feeble brain.
When every pregnancy and every birth are looked upon by human society with honor and respect, when every mother is protected by law and assisted in the education of her children, then only will society have the right to judge severely of infanticide.