Ernest Belfort Bax on Criminal Sexual Law Under Socialism (1887)

Excerpt from ‘Criminal Law Under Socialism’ – Ernest Belfort Bax (1887)

The second class of offences named, those connected with sexual matters, from rape downwards, may be viewed from two or three different sides, and are complicated in ways which render the subject difficult of discussion in a work intended for promiscuous circulation between the sees. Here, as in the last case, viz., of theft or robbery, we must be careful in considering such offences, to eliminate the element of brutality or personal injury which may sometimes accompany them, from the offence itself. For the rest I confine myself to remarking that this class also, though not so obviously as the last, springs from an instinct legitimate in itself, but which has been suppressed or distorted. The opinions of most, even enlightened people, on such matters are, however, so largely coloured by the unconscious survival in their minds of sentiment derived from old theological and theosophical views of the universe, that they are not of much value. This is partly the reason why the ordinary good-natured bourgeois who can complacently pass by on the other side, after casting a careless look on the most fiendish and organised cruelty in satisfaction of the economic craving-gain, is galvanised into a frenzy of indignation at some sporadic case of real or supposed ill-usage perpetrated in satisfaction of some bizarre form of the animal craving lust. Until people can be got to discuss this subject in the white light of physiological and pathological investigation, rather than the dim religious gloom of theosophical emotion, but little progress will be effected towards a due appreciation of the character of the offences referred to. [1]

The two last orders of crime named differ from the preceding, in that they do not have even a basis in natural or social instinct as such. A brutal assault or malicious injury (i.e., one not inflicted in self-defence or under immediate and strong provocation) is purely and simply inhuman-criminal without having any direct palliation in the facts of economic conditions, like crimes against property, or in physiological and (possibly) economic conditions combined, like sexual crimes. Brutality and cruelty so far outweigh in enormity the two last as to seem almost to swallow them up. For instance, in cases of robbery or rape with violence, it is the personal violence accompanying the substantive crimes which naturally excites one’s resentment most; and properly so, although it is the latter of which the bourgeois law primarily takes cognisance. Any crime causing bodily injury or suffering must surely, in the absence of specially palliative circumstances, be regarded as the most deserving of condemnation at the hands of society.

The same may be said of false accusation of crime, an offence which is now classed together with others much less serious, under the absurd name of Perjury, the idea being that its gravamen consists not in the injury done to the innocent but in its insult to the majesty of the law. The unperverted sense could scarcely conceive of any crime more monstrous than this, and yet it is one which is frequently passed over lightly, with the view possibly of not discouraging prosecutions and thereby injuring the legal interest. By being classed under the head of perjury, moreover; it sounds less infamous than it really is, mere perjury being a thing recognised and practised in the best social circles, where the corespondent in a divorce case who has been committing adultery swears he hasn’t, as a mere matter of form.

(Notes) 1. It is a curious circumstance, as illustrating the change of men’s view of offences, that an ordinary indecent assault which in the Middle Ages, in Chaucer’s time for instance, would evidently have been regarded as a species of rude joke, should now be deemed one of the most serious of crimes.