It is easy to determine crime. Who shall determine the criminal? What is he? The legal assumption, up to a comparatively recent time, was that he is a normal person, who wilfully commits abnormal acts. We know this to be untrue in, at least, half of the instances. Is the law alone capable of fixing the limits of guilt in this last half, or of even drawing a line of demarcation between the two? Assuredly not. What then? We dare not predicate conviction on the confession of the criminal; for the diseased innocents, it is well known to the psychopathologist, are always the first to confess their alleged crimes. The criminal by instinct rarely confesses, unless to escape a severer penalty. Normal methods of judgment cannot apply to the abnormal; and every individual may be said to be abnormal whose emotional, or mental, characteristics are so divergent from the ordinary as to produce intellectual defect. It is difficult, if not impossible, to discriminate between these two elements of society with absolute correctness. But Medicine, far more nearly than Law, is capable of so discriminating; fixing the point at which an abnormality reaches the boundary-line of disease; whether the physiological processes are changed in kind or degree; and the character and extent of the punitive and reformative remedies that should be applied to each. These generalizations apply to sexual, as to other forms of social crime. The conception of punishment, as Steinmetz has well pointed out, belonging to a primitive group of animistic ideas—lex talionis, etc.—is especially faulty as it applies to sexual offenders. It outrages, as a rule, every principle of scientific criminology; places the victim only in a more advanced school of sexual perversion; and fixes in his mind, as it does with every other species of crime, the idea that, instead of any possible purpose of reformation being involved in the punishment, it means wholly and simply "squaring his account" with society, according to popular vote—law, and going back with a blank book to begin again.
Almost the whole machinery of our courts—statute-books, witnesses, precedents, rulings—is brought into play to establish the " responsibility " or "irresponsibility" of the prisoner; an obviously unimportant point; since, in any correct system of social jurisprudence, the purpose should be, not to punish, but to bring the offender into such a condition that he shall no longer be injurious to society—antisocial. It matters not whether his crime be the result of "atavism," "epilepsy," "moral insanity," "degeneracy," "inborn obtusity" (Stumpfsinn), "moral cretinism," or any other of the more or less vague terms invented to cover his abnormality,* if he be persistently and irreconcilably antisocial, society has a right to demand bis removal or elimination. The "antiquated blunderbuss of punishment," as it is well called by a certain writer,1 having been shown to be utterly inefficacious, it remains for scientific medicine to pass sentence upon him—to cure if possible, to eliminate if necessary.