On all these grounds, and taking into consideration the fact that the tendency of modern legislation generally, and the consensus of authoritative opinion in all countries, are in this direction, it seems reasonable to conclude that neither “sodomy” (i.e., immissio membri in anum hominis vel mulieris) nor “gross indecency” ought to be penal offenses, except under certain special circumstances.  That is to say, that if two persons of either or both sexes, having reached years of discretion,[275] privately consent to practise some perverted mode of sexual relationship, the law cannot be called upon to interfere.  It should be the function of the law in this matter to prevent violence, to protect the young, and to preserve public order and decency.  Whatever laws are laid down beyond this must be left to the individuals themselves, to the moralists, and to social opinion.

At the same time, and while such a modification in the law seems to be reasonable, the change effected would be less considerable than may appear at first sight.  In a very large proportion, indeed, of cases boys are involved.  It is instructive to observe that in Legludic’s 246 cases (including victims and aggressors together) in France, 127, or more than half, were between the ages of 10 and 20, and 82, or exactly one-third, were between the ages of 10 and 14.  A very considerable field of operation is thus still left for the law, whatever proportion of cases may meet with no other penalty than social opinion.

That, however, social opinion—­law or no law—­will speak with no uncertain voice is very evident.  Once homosexuality was primarily a question of population or of religion.  Now we hear little either of its economic aspects or of its sacrilegiousness; it is for us primarily a disgusting abomination, i.e., a matter of taste, of esthetics; and, while unspeakably ugly to the majority, it is proclaimed as beautiful by a small minority.  I do not know that we need find fault with this esthetic method of judging homosexuality.  But it scarcely lends itself to legal purposes.  To indulge in violent denunciation of the disgusting nature of homosexuality, and to measure the sentence by the disgust aroused, or to regret, as one English judge is reported to have regretted when giving sentence, that “gross indecency” is not punishable by death, is to import utterly foreign considerations into the matter.  The judges who yield to this temptation would certainly never allow themselves to be consciously influenced on the bench by their political opinions.  Yet esthetic opinions are quite as foreign to law as political opinions.  An act does not become criminal because it is disgusting.  To eat excrement, as Moll remarks, is extremely disgusting, but it is not criminal.  The confusion which thus exists, even in the legal mind, between the disgusting and the criminal is additional evidence of the undesirability of the legal penalty for simple homosexuality.  At the same time it shows that social opinion is amply adequate to deal with the manifestations of inverted sexuality.  So much for the legal aspects of sexual inversion.