The only large European countries in which homosexuality per se remains a penal offense appear to be Germany, Austria, Russia, and England.  In several of the German States, such as Bavaria and Hanover, simple homosexuality formerly went unpunished, but when the laws of Prussia were in 1871 applied to the new German Empire this ceased to be the case, and unnatural carnality between males became an offense against the law.  This article of the German Code (Section 175) has caused great discussion and much practical difficulty, because, although the terms of the law make it necessary to understand by widernatuerliche Unzucht other practices besides paedicatio, not every homosexual practice is included; it must be some practice resembling normal coitus.  There is a widespread opinion that this article of the code should be abolished; it appears that at one time an authoritative committee pronounced in favor of this step, and their proposition came near adoption.  The Austrian law is somewhat similar to the German, but it applies to women as well as to men; this is logical, for there is no reason why homosexuality should be punished in men and left unpunished in women.  In Russia the law against homosexual practices appears to be very severe, involving, in some cases, banishment to Siberia and deprivation of civil rights; but it can scarcely be rigorously executed.

The existing law in England is severe, but simple.  Carnal knowledge per anum of either a man or a woman or an animal is punishable by a sentence of penal servitude with not less than three years, or of imprisonment with not more than two years.  Even “gross indecency” between males, however privately committed, has been since 1885 a penal offense.[270] The clause is open to criticism.  With the omission of the words “or private,” it would be sound and in harmony with the most enlightened European legislation; but it must be pointed out that an act only becomes indecent when those who perform it or witness it regard it as indecent.  The act which brought each of us into the world is not indecent; it would become so if carried on in public.  If two male persons, who have reached years of discretion, consent together to perform some act of sexual intimacy in private, no indecency has been committed.  If one of the consenting parties subsequently proclaims the act, indecency may doubtless be created, as may happen also in the case of normal sexual intercourse, but it seems contrary to good policy that such proclamation should convert the act itself into a penal offense.  Moreover, “gross indecency” between males usually means some form of mutual masturbation; no penal code regards masturbation as an offense, and there seems to be no sufficient reason why mutual masturbation should be so regarded.[271] The main point to be insured is that no boy or girl who has not reached years of discretion should be seduced or abused by an older person, and this point is equally well guaranteed on the basis introduced by the Code Napoleon.  However shameful, disgusting, personally immoral, and indirectly antisocial it may be for two adult persons of the same sex, men or women, to consent together to perform an act of sexual intimacy in private, there is no sound or adequate ground for constituting such act a penal offense by law.