If, therefore, two children of eleven engage in mutual misconduct, they
incur no liability to legal punishment. But two boys of thirteen are
liable to prosecution for the practice of mutual masturbation. Each of
them has performed an improper act with a child under fourteen years of
age, and the liability to punishment in each case depends upon the
answer to the question whether the offender possessed sufficient
knowledge to enable him to understand his culpability. This knowledge is
not identical with the knowledge that the offence was legally
punishable; that is to say, either boy would be liable to punishment,
even though he had no idea whatever that improper sexual relations with
children under fourteen constituted an offence against the law. All that
is necessary is that he should possess a sufficient degree of
intelligence to understand his culpability, which is quite another thing
from his possessing knowledge of his legal liability to punishment.
Generally speaking, however, the public prosecutor is disinclined to
initiate proceedings in such cases, for the most part because it is
held that the necessary understanding of culpability is commonly
lacking. But such prosecutions have more than once occurred. In the year
1899, in a little town in the Mark of Brandenburg, proceedings were
taken against eighteen school-children, boys and girls, and five
pupil-teachers. These twenty-three persons, who appeared in the dock,
had all reached an age at which they became liable to criminal
prosecution; in the case of a number of other boys and girls who were
concerned in the affair, no prosecution could take place. Ultimately,
all the accused were discharged, as it was held that when the offence
was committed they did not possess the requisite understanding of its
culpable character. But by order of the court several of the accused
were transferred to a reformatory. Since a prosecution may take place in
such cases, a conviction is also possible. It is evident that as soon as
a child is twelve years old, it may incur legal liabilities in
consequence of the activity of the sexual impulse.
Public-domain text, read in full here on John Shaqi.
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