nishable 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.

One of the most serious objections to the legal recognition of private
"gross indecency" is the obvious fact that only in the rarest cases can
such indecency become known to the police, and we thus perpetrate what is
very much like a legal farce. "The breaking of few laws," as Moll truly
observes, regarding the German law, "so often goes unpunished as of this."
It is the same in England, as is amply evidenced by the fact that, of the
English sexual inverts, whose histories I have obtained, not one, so far
as I am aware, has ever appeared in a police-court on this charge.

It may further be pointed out that legislation against homosexuali