(b) With Persons of the Same Sex—Pederasty; Sodomy in its Strict Sense.
German law takes cognizance of unnatural sexual relations only between men; Austrian, between those of the same sex; and, therefore, unnatural relations between women are punishable.
Among the immoralities between men, pederasty (immissio penis in anum) claims the principal interest. Indeed, the jurist thought only of this perversity of sexual activity; and, according to the opinions of distinguished interpreters of the law (Oppenhoff, "Stgsb.," Berlin, 1872, p. 324, and Rudolf and Stenglein, "D. Strafgesb. f. d. Deutsche Reich," 1881, p. 423), immissio penis in corpus vivum belongs to the criminal act covered by § 175.
According to this interpretation, legal punishment would not follow other improper acts between male persons, so long as they were not complicated with offense to public decency, with force, or undertaken with boys under the age of fourteen. Of late this interpretation has again been abandoned, and the crime of unnatural abuse between men has been assumed when merely acts similar to cohabitation were performed.[1]
The study of contrary sexual instinct has placed male love of males in a very different light from that in which it, and particularly pederasty, stood at the time the statutes were framed. The fact that there is no doubt about the pathological basis of many cases of contrary sexual instinct shows that pederasty may also be the act of an irresponsible person, and makes it necessary, in court, to examine not merely the deed, but also the mental condition of the perpetrator.
The principles laid down previously must also be adhered to here. Not the deed, but only an anthropological and clinical judgment of the perpetrator can permit a decision as to
- ↑ How difficult, unpleasant, and dangerous for the jurist judgment of these "coitus-like" acts for the establishment of the objective fact of the crime may be is well shown by an article on the punishableness of male intercourse, in the Zeitschr. f. d. gesammte Strafrechtswissenschaft., Bd. vii, Heft 1, as well as by a similar one in Friedreich's Blätter f. ger. Medicin, 1891, Heft 6. Vide, further, Moll, Conträre Sexualempfindung, p. 223 et seq., and Bernhardi, Der Uranismus, Berlin, 1882.
