3. Bodily Injury, Injury to Property, and Torture of Animals
Dependent on Sadism.[1]
(Austrian, § 152, 411; German, § 223 [bodily injury]. Austrian, § 85, 468; German, § 303 [injury to property]. Austrian Police Regulations; German Statutes, § 360 [torture of animals].)
Aside from lust-murder, described in the foregoing section, as milder expressions of sadistic desires, impulses to stab, flagellate, or defile females, to flagellate boys, to maltreat animals, etc., also occur.
The deep degenerative significance of such cases is clearly demonstrated by the series of examples given under "General Pathology." Such mentally degenerate individuals, should they be unable to control their perverse impulses, could only be objects of care in asylums.
4. Bodily Injury, Robbery, and Theft Dependent on Fetichism.
(Austrian, § 190; German, § 249 [robbery]. Austrian, § 171, 460; German, § 242 [theft].)
It is seen from the section on fetichism, under "General Pathology," that pathological fetichism may become the cause of crimes. There are now recognized, as such, hair-despoiling (Cases 78, 79, 80); robbery or theft of female linen, handkerchiefs, aprons (Cases 82, 83, 85, 86), shoes (Cases 68, 87, 88), and silks (Case 93). It cannot be doubted that such individuals are subjects of deep mental taint. But, for the assumption of an absence of mental freedom and consequent irresponsibility, it
- ↑ Masochism may, under certain circumstances, attain forensic importance. Modern criminal law no longer recognizes the principle, "volenti non fit injuria"; and the present Austrian statute, in § 4, says expressly: "Crimes may also be committed on persons who demand their commission on themselves."
As Herbst (Handb. d. österr. Strafrechts., Wien, 1878, p. 72) remarks, there are, nevertheless, crimes conditioned by the absence of assent on the part of the injured individual, which cease to be such as soon as the injured individual has given consent,—e.g., theft, rape.
But Herbst also enumerates here the limitation of personal freedom (?).
Of late a decided change of views on this point has taken place. The German criminal law regards the consent of a man to his own death of such importance that a very different and much milder punishment is inflicted under such circumstances (§ 216); and it is the same in Austrian law (Austrian Abridgment, § 222). The so-called double suicide of lovers was the act considered. In bodily injury and deprivation of freedom, the consent of the victim must also receive consideration at the hands of the judge. Certainly a knowledge of masochism is of importance in making a judgment of the probability of asserted consent.
