Paragraph 175
Encyclopedia
Paragraph 175 was a provision of the German Criminal Code
from 15 May 1871 to 10 March 1994. It made homosexual
acts between males a crime, and in early revisions the provision also criminalized bestiality. All in all, around 140,000 men were convicted under the law.
The statute was amended several times. The Nazis
broadened the law in 1935; in the prosecutions that followed, thousands died in concentration camps
. East Germany reverted to the old version of the law in 1950, limited its scope to sex with youths under 18 in 1968, and abolished it entirely in 1988. West Germany
retained the Nazi-era statute until 1969, when it was limited to "qualified cases"; it was further attenuated in 1973, and finally revoked entirely in 1994 after German reunification
.
, head of the Social Democratic Party (SPD)
. But a petition in the Reichstag
to abolish Paragraph 175 foundered in 1898. In 1907, a Reichstag Committee decided to broaden the paragraph to make lesbian sexual acts punishable as well, but that legislation languished for ten years and was finally dropped in 1917. In 1929, another Reichstag Committee decided to repeal Paragraph 175 with the votes of the Social Democrats, the Communist Party (KPD)
and the German Democratic Party (DDP); however, the rise of the Nazi Party
prevented the implementation of the repeal. Although modified at various times, the paragraph remained part of German law until 1994.
In 1935, the Nazis broadened the law so that the courts could pursue any "lewd act" whatsoever, even one involving no physical contact, such as masturbating
next to each other. Convictions multiplied by a factor of ten to about 8,000 per year. Furthermore, the Gestapo
could transport suspected offenders to concentration camps without any legal justification at all (even if they had been acquitted or already served their sentence in jail). Thus, between 5,000 and 15,000 homosexual men were forced into concentration camps, where they were identified by the pink triangle
. The majority of them died there.
While the Nazi persecution of homosexuals is reasonably well-known today, far less attention had been given to the continuation of this persecution in post-war Germany. In 1945, when concentration camps were liberated, homosexual prisoners were not freed but were instead made to serve out their sentence under Paragraph 175. In 1950, East Germany abolished Nazi amendments to Paragraph 175, whereas West Germany kept them and even had them confirmed by its Constitutional Court
. About 100,000 men were implicated in legal proceedings from 1945 to 1969, and about 50,000 were convicted (if they had not committed suicide before, as many did). In 1969, the government eased Paragraph 175 to an age of consent
of 21. It was lowered to 18 in 1973, and finally the paragraph was repealed and the age of consent lowered to 14, the same that is in force for heterosexual acts, in 1994. East Germany had already reformed its more lenient version of the paragraph in 1968, and repealed it in 1988.
texts of the statutes, as well as quotations from earlier sodomy statutes, see the equivalent German-language wikipedia article.
Hence, a relatively close rendering of the recurring phrase would be "commits lewdness (as the active partner) with another man or allows such an abuse to be done to him"; the translation below opts for a slightly less awkward "engages as the active or passive partner in lewdness with another man".
The German-language title of § 175b is "Sodomie", the modern German-language equivalent of "bestiality
". In modern German, Sodomie does not carry the meaning anal intercourse at all. The now-dominant English-language meaning of the word "sodomy
" has been lost during the past centuries and nowadays is completely unknown to a native speaker of German. (See German-language article Sodomie.)
In the second half of the 13th century the status of anal sex
between men changed. Already certainly perceived as a sin
, for the first time, legal acts were adopted that made it a crime
. Almost everywhere in Europe
, the act became punishable by death.
In 1532, Charles V, Holy Roman Emperor
with the Constitutio Criminalis Carolina
produced a foundation for this principle of law, which remained valid in the Holy Roman Empire
until the end of the 17th century. In the words of Paragraph 116 of that code:
In 1794, Prussia
introduced the Allgemeines Landrecht (or Prussian Code), a major reform of laws that replaced the death penalty for this offense with a term of imprisonment. Paragraph 143 of that Code says:
Prussia was ahead of its time in this matter and was considered to be acting in the spirit of the Enlightenment, but they would soon be overtaken. In France
, the Napoleonic code
of 1804 punished acts of this nature only when someone's rights were injured (i.e. in the case of a non-consensual
act), which had the effect of the complete legalization of homosexuality.
In the course of his conquests, Napoleon exported the Napoleonic code beyond France into a sequence of other states such as the Netherlands
. Bavaria
, too, adopted the French model and in 1813 removed from its lawbooks all prohibitions of consensual sexual acts.
In view of these developments, two years before the 1871 founding of the German Empire
, the Prussian kingdom, worried over the future of the paragraph, sought a scientific basis for this piece of legislation. The Ministry of Justice assigned a Deputation für das Medizinalwesen ("Deputation for medical knowledge"), including, among others, the famous physician
s Rudolf Virchow
and Heinrich Adolf von Bardeleben
, who, however, stated in their appraisal of March 24, 1869 that they were unable to give a scientific grounding for a law that outlawed zoophilia and male homosexual intercourse, distinguishing them from the many other sexual acts that were not even considered as matters of penal law.
Nevertheless, the draft penal law submitted by Bismarck
in 1870 to the North German Confederation
retained the relevant Prussian penal provisions, justifying this out of concern for "public opinion
":
On January 1, 1872, exactly one year after it had first taken effect, the penal code of the North German Confederation became the penal code of the entire German Empire.
By this change, sexual intercourse between men became again a punishable offence in Bavaria as well. Almost verbatim from its Prussian model from 1794, the new Paragraph 175 of the imperial penal code specified:
Even in the 1860s, individuals such as Karl Heinrich Ulrichs
and Karl Maria Kertbeny had unsuccessfully raised their voices against the Prussian paragraph 143. In the Empire, more organized opposition began with the 1897 founding of the sexual-reformist Wissenschaftlich-humanitäres Komitee (WhK, Scientific-Humanitarian Committee
), an organization of notables rather than a mass movement, which tried to proceed against Paragraph 175 based on the thesis of the innate nature of homosexuality
.
This case was argued, for example, in an 1897 petition
drafted by physician and WhK chairman Magnus Hirschfeld
, urging the deletion of Paragraph 175; it gathered 6,000 signatories. One year later, SPD chairman August Bebel
brought the petition into the Reichstag, but failed to achieve the desired effect. On the contrary, ten years later the government laid plans to extend Paragraph 175 to women as well. Part of their "Scheme for a German Penal Code" (E 1909) reads:
Allowing time for the refinement of the draft, it was set to appear before the Reichstag no earlier than 1917. World War I
and the defeat of the German Empire consigned it to the dustbin.
There was a vigorous grassroots campaign against Paragraph 175 between 1919 and 1929, led by an alliance of the Gemeinschaft der Eigenen
and the Wissenschaftlich-humanitäre Komitee
. But, much as during the time of the Empire, during the Weimar Republic
the parties of the left failed to achieve the abolition of Paragraph 175, because they lacked a parliament
ary majority.
The plans of a center-right
regime in 1925 to increase the penalties of Paragraph 175 came closer to fruition; but they, too, failed. In addition to paragraph 296 (which corresponded to the old paragraph 175), their proposed reform draft provided for a paragraph 297 to be included. The plan was that so-called "qualified cases" such as homosexual prostitution
, sex with young men under the age of 21, and sexual coercion of a man in a service or work situation would be classified as "severe cases", reclassified as felonies
(Verbrechen) rather than misdemeanor
s (Vergehen). This act would have pertained not only to homosexual intercourse but also to other homosexual acts such as, for example, mutual masturbation.
Both new paragraphs grounded themselves in protection of public health
:
When this draft was discussed in 1929 by the judiciary committee of the Reichstag, the SPD
, the KPD
, and the left-wing liberal DDP at first managed to mobilize a majority of 15 to 13 votes against Paragraph 296. This would have constituted legalization of consensual homosexuality between adult men. At the same time, a vast majority with only three KPD votes dissenting supported the introduction of the new Paragraph 297 (dealing with the so-called "qualified cases").
However, this partial success which the WhK characterized as "one step forward and two steps back" came to nought. In March 1930, the Inter-parliamentary Committee for the Coordination of Criminal Law Between Germany and Austria, by a vote of 23-to-21, placed back Paragraph 296 in the reform package. But the latter was never passed, because during the last years of the Weimar Republic, the years of the Präsidialkabinetts, the parliamentary legislative process generally ground to a halt.
In 1935 the Nazis
exacerbated Paragraph 175 by redefining the crime as a felony and thus increasing the maximum penalty from six months' to five years' imprisonment. Further, by removing the adjective widernatürlich ("against nature") they removed the longtime tradition that the law applied only to penetrative intercourse. A criminal offense would now exist if "objectively the general sense of shame was offended" and subjectively "the debauched intention was present to excite sexual desire in one of the two men, or a third." [The quotations are from German case law
, RGSt 73, 78, 80 f.] Mutual physical contact was no longer necessary.
Beyond that much as had already been planned in 1925 a new Paragraph 175a was created, punishing "qualified cases" as schwere Unzucht ("severe lewdness") with no less than one year and no more than ten years in the penitentiary. These included:
"Unnatural fornication with a beast" was moved to Paragraph 175b.
According to the official rationale, Paragraph 175 was amended in the interest of the moral health of the Volk the German people because "according to experience" homosexuality "inclines toward plague-like propagation" and exerts "a ruinous influence" on the "circles concerned".
This aggravation of the severity of Paragraph 175 in 1935 increased the number of convictions tenfold, to 8,000 annually. Only about half of the prosecutions resulted from police work; about 40 percent resulted from private accusations (Strafanzeige) by non-participating observers, and about 10 percent were denouncements by employers and institutions. So, for example, in 1938 the Gestapo
received the following anonymous letter:
In contradistinction to normal police, the Gestapo were authorized to take gay men into preventive detention
(Schutzhaft) of arbitrary duration without an accusation (or even after an acquittal
). This was often the fate of so-called "repeat offenders": at the end of their sentences, they were not freed but sent for additional "reeducation" (Umerziehung) in a concentration camp. Only about 40 percent of these pink triangle
prisoners whose numbers amounted to an estimated 10,000 survived the camps. Some of them, after their release by the Allied Forces, were placed back in prison, because they had not yet finished court-mandated terms of imprisonment for homosexual acts.
), the development of law was not uniform. The government of Thuringia
moderated Paragraphs 175 and 175a in a manner similar to that contemplated in the draft criminal code of 1925, while in the other states (Länder
) the 1935 version of the statute remained in effect without changes. Although in 1946 the Committee for Law Examination of East Berlin
specifically advised not to include § 175 StGB in a new criminal code, this recommendation had no consequences. The Provincial High Court in Halle
(Oberlandesgericht Halle, or OLG Halle) decided for Saxony-Anhalt
in 1948 that Paragraphs 175 and 175a were to be seen as injustice perpetrated by the Nazis, because a progressive
juridical development had been broken off and even been reversed. Homosexual acts were to be tried only according to the laws of the Weimar Republic.
In 1950, one year after being reconstituted as the German Democratic Republic
, the Berlin Appeal Court (Kammergericht Berlin) decided for all of East Germany to reinstate the validity of the old, pre-1935 form of Paragraph 175. However, in contrast to the earlier action of the OLG Halle, the new Paragraph 175a remained unchanged, because it was said to protect society against "socially harmful homosexual acts of qualified character". In 1954 the same court decided that Paragraph 175a in contrast to Paragraph 175 did not presuppose acts tantamount to sexual intercourse. Lewdness (Unzucht) was defined as any act that is performed to arouse sexual excitement and "violates the moral sentiment of our workers."
A revision of the criminal code in 1957 made it possible to put aside prosecution of an illegal action that represented no danger to socialist
society because of lack of consequence. This removed Paragraph 175 from the effective body of the law, because at the same time the East Berlin Court of Appeal (Kammergericht) decided that all punishments deriving from the old form of Paragraph 175 should be suspended due to the insignificance of the acts to which it had been applied. On this basis, homosexual acts between consenting adults ceased to be punished, beginning in the late 1950s.
On July 1, 1968, the GDR adopted its own code of criminal law. In it § 151 StGB-DDR provided for a sentence up to three years' imprisonment or probation for an adult (18 and over) who engaged in sexual acts with a youth (under 18) of the same sex. This law applied not only to men who have sex with boys but equally to women who have sex with girls.
On August 11, 1987 the Supreme Court of the GDR struck down a conviction under Paragraph 151 on the basis that "homosexuality, just like heterosexuality, represents a variant of sexual behavior. Homosexual people do therefore not stand outside socialist society, and the civil rights are warranted to them exactly as to all other citizens." One year later, the Volkskammer
(the parliament of the GDR), in its fifth revision of the criminal code, brought the written law in line with what the court had ruled, striking Paragraph 151 without replacement. The act passed into law May 30, 1989. This removed all specific reference to homosexuality from East German criminal law.
After World War II
, West Germany
(The Federal Republic of Germany) retained the 1935 version of Paragraph 175. On May 10, 1957 the Bundesverfassungsgericht upheld this decision, claiming that the paragraph was "not influenced by National Socialist [i.e., Nazi] politics to such a degree that it would have to be abolished in a free democratic state".
Between 1945 and 1969 about 100,000 men were indicted and about 50,000 men sentenced to prison. Many arrests, lawsuits, and proceedings in Frankfurt in 1950–'51 had serious consequences:
During the administration of Chancellor Konrad Adenauer
's government, a draft penal code for West Germany (known as Strafgesetzbuch E 1962; it was never adopted) justified retaining paragraph 175 as follows:
On June 25, 1969, shortly before the end of the CDU SPD Grand Coalition headed by CDU Chancellor Kurt Georg Kiesinger
, Paragraph 175 was reformed, in that only the "qualified cases" that were previously handled in §175a sex with a man less than 21 years old, homosexual prostitution, and the exploitation of a relationship of dependency (such as employing or supervising a person in a work situation) were retained. Paragraph 175b (concerning bestiality) also was removed.
On November 23, 1973 the social-liberal coalition of the SPD and the FDP passed a complete reform of the laws concerning sex and sexuality. The paragraph was renamed from "Crimes and misdemeanors against morality" into "Offenses against sexual self-determination", and the word Unzucht ("lewdness") was replaced by the equivalent of the term "sexual acts". Paragraph 175 only retained sex with minors as a qualifying attribute; the age of consent
was lowered to 18 (compared to 14 for heterosexual sex).
In 1986 the Green Party
and the first openly gay member of the German parliament tried to remove Paragraph 175 together with Paragraph 182. This would have meant a general age of consent of 14 years. This was opposed by the CDU, SPD, and FDP, and Paragraph 175 remained a part of German law for eight more years.
had to decide whether Paragraph 175 should be stricken entirely (as in the former East Germany) or whether the remaining West German form of the law should be extended to what had now become the eastern portion of the Federal Republic. In 1994, at the end of the period of reconciliation of laws, it was decided especially in view of the social changes that had occurred in the meantime to strike Paragraph 175 entirely from the legal code.
According to § 176 StGB (See German-language article § 176 StGB) the absolute minimum age of consent is now 14 years for all sexual acts irrespective of gender; in special cases, covered in § 182 StGB, an age of 16 years applies (See German-language article § 182 StGB). § 182 (2) StGB allows for prosecution as an Antragsdelikt
, a concept in German law that certain acts are treated as crimes only if the victim chooses to become a complainant. Further, § 182 (3) StGB allows the public prosecutor's office to pursue a case on the basis of its belief that there is a special public interest. Finally, § 182 (4) StGB allows the court to refrain from punishment if, taking into account the behavior of the victim, the wrongness of the accused's behavior appears small.
§ 182 StGB contains numerous terms without precise, clear legal definitions; critics have raised concerns that families can misuse this law to criminalize socially disapproved sexual relationships (e.g. a family that disapproved of a young person's homosexual relationship might be able to get that person's partner prosecuted). In Austria an analogous situation exists: like the German § 175 StGB, the Austrian § 209 StGB was stricken from the legal code; like the German § 182 StGB, the Austrian § 207b StGB is perceived by critics as having potential to be abused as a surrogate for the stricken law.
On May 17, 2002 a date chosen symbolically as "17.5" despite votes to the contrary from the CDU/CSU and FDP, the Bundestag passed a supplement to the Act of Abolition of National Socialism (NS-Aufhebungsgesetzes). By this supplement to the act, Nazi-era convictions of homosexuals and of deserters
from the Wehrmacht
were vacated. The right
-conservative
CSU-politician Norbert Geis
called this general amnesty a "dishonor". This "dishonor" referred only to the deserters from the Wehrmacht, however, not to the homosexuals. Louder criticism came from the lesbian and gay movement, because the Bundestag left post-1945 judgements untouched, although the legal basis from the end of the war to 1969 was the same as in the Nazi era.
Strafgesetzbuch
Strafgesetzbuch is the German name for Penal Code and is abbreviated to StGB.- History :In Germany the Strafgesetzbuch goes back to the Penal Code of the German Empire passed in the year 1871 which was largely identical to the Penal Code of the North German Confederation.This Reichsstrafgesetzbuch ...
from 15 May 1871 to 10 March 1994. It made homosexual
Homosexuality
Homosexuality is romantic or sexual attraction or behavior between members of the same sex or gender. As a sexual orientation, homosexuality refers to "an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions" primarily or exclusively to people of the same...
acts between males a crime, and in early revisions the provision also criminalized bestiality. All in all, around 140,000 men were convicted under the law.
The statute was amended several times. The Nazis
Nazi Germany
Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...
broadened the law in 1935; in the prosecutions that followed, thousands died in concentration camps
Nazi concentration camps
Nazi Germany maintained concentration camps throughout the territories it controlled. The first Nazi concentration camps set up in Germany were greatly expanded after the Reichstag fire of 1933, and were intended to hold political prisoners and opponents of the regime...
. East Germany reverted to the old version of the law in 1950, limited its scope to sex with youths under 18 in 1968, and abolished it entirely in 1988. West Germany
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
retained the Nazi-era statute until 1969, when it was limited to "qualified cases"; it was further attenuated in 1973, and finally revoked entirely in 1994 after German reunification
German reunification
German reunification was the process in 1990 in which the German Democratic Republic joined the Federal Republic of Germany , and when Berlin reunited into a single city, as provided by its then Grundgesetz constitution Article 23. The start of this process is commonly referred by Germans as die...
.
Historical overview
Paragraph 175 was adopted in 1871, shortly after Germany was unified. Beginning in the 1890s, sexual reformers fought against the "disgraceful paragraph," and soon won the support of August BebelAugust Bebel
Ferdinand August Bebel was a German Marxist politician, writer, and orator. He is best remembered as one of the founders of the Social Democratic Party of Germany.-Early years:...
, head of the Social Democratic Party (SPD)
Social Democratic Party of Germany
The Social Democratic Party of Germany is a social-democratic political party in Germany...
. But a petition in the Reichstag
Reichstag (German Empire)
The Reichstag was the parliament of the North German Confederation , and of the German Reich ....
to abolish Paragraph 175 foundered in 1898. In 1907, a Reichstag Committee decided to broaden the paragraph to make lesbian sexual acts punishable as well, but that legislation languished for ten years and was finally dropped in 1917. In 1929, another Reichstag Committee decided to repeal Paragraph 175 with the votes of the Social Democrats, the Communist Party (KPD)
Communist Party of Germany
The Communist Party of Germany was a major political party in Germany between 1918 and 1933, and a minor party in West Germany in the postwar period until it was banned in 1956...
and the German Democratic Party (DDP); however, the rise of the Nazi Party
National Socialist German Workers Party
The National Socialist German Workers' Party , commonly known in English as the Nazi Party, was a political party in Germany between 1920 and 1945. Its predecessor, the German Workers' Party , existed from 1919 to 1920...
prevented the implementation of the repeal. Although modified at various times, the paragraph remained part of German law until 1994.
In 1935, the Nazis broadened the law so that the courts could pursue any "lewd act" whatsoever, even one involving no physical contact, such as masturbating
Masturbation
Masturbation refers to sexual stimulation of a person's own genitals, usually to the point of orgasm. The stimulation can be performed manually, by use of objects or tools, or by some combination of these methods. Masturbation is a common form of autoeroticism...
next to each other. Convictions multiplied by a factor of ten to about 8,000 per year. Furthermore, the Gestapo
Gestapo
The Gestapo was the official secret police of Nazi Germany. Beginning on 20 April 1934, it was under the administration of the SS leader Heinrich Himmler in his position as Chief of German Police...
could transport suspected offenders to concentration camps without any legal justification at all (even if they had been acquitted or already served their sentence in jail). Thus, between 5,000 and 15,000 homosexual men were forced into concentration camps, where they were identified by the pink triangle
Pink triangle
The pink triangle was one of the Nazi concentration camp badges, used to identify male prisoners who were sent there because of their homosexuality. Every prisoner had to wear a downward-pointing triangle on his or her jacket, the colour of which was to categorise him or her by "kind"...
. The majority of them died there.
While the Nazi persecution of homosexuals is reasonably well-known today, far less attention had been given to the continuation of this persecution in post-war Germany. In 1945, when concentration camps were liberated, homosexual prisoners were not freed but were instead made to serve out their sentence under Paragraph 175. In 1950, East Germany abolished Nazi amendments to Paragraph 175, whereas West Germany kept them and even had them confirmed by its Constitutional Court
Federal Constitutional Court of Germany
The Federal Constitutional Court is a special court established by the Grundgesetz, the German basic law...
. About 100,000 men were implicated in legal proceedings from 1945 to 1969, and about 50,000 were convicted (if they had not committed suicide before, as many did). In 1969, the government eased Paragraph 175 to an age of consent
Age of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
of 21. It was lowered to 18 in 1973, and finally the paragraph was repealed and the age of consent lowered to 14, the same that is in force for heterosexual acts, in 1994. East Germany had already reformed its more lenient version of the paragraph in 1968, and repealed it in 1988.
Texts of the various versions of Paragraph 175
For the original German languageGerman language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
texts of the statutes, as well as quotations from earlier sodomy statutes, see the equivalent German-language wikipedia article.
Version of May 15, 1871
§ 175 Unnatural fornication
Unnatural fornication, whether between persons of the male sex or of humans with beasts, is to be punished by imprisonment; a sentence of loss of civil rights may also be passed.
Version of June 28, 1935
In the statute of 1935 (and that of 1969), there is a recurring phrase with minor variations: in its first appearance it is "...mit einem anderen Mann Unzucht treibt oder sich von ihm zur Unzucht mißbrauchen läßt". The connotations of this are difficult to render into English for two reasons:- English has no concise, non-obscene verbal phrase equivalent to Unzucht treiben: in a sexual context, Unzucht treiben specifically suggests a person doing something to another.
- The 1935 statute removed the previous qualifier widernatürlich ("against nature"). In the 1871 statute, in combination with widernatürlich, Unzucht clearly meant anal sexAnal sexAnal sex is the sex act in which the penis is inserted into the anus of a sexual partner. The term can also include other sexual acts involving the anus, including pegging, anilingus , fingering, and object insertion.Common misconception describes anal sex as practiced almost exclusively by gay men...
. However, Unzucht without the qualifier could be interpreted in a much broader sense simply as "lewdness", leading to the possibility of punishment for acts as mild as kissing, fondling, or mutual masturbation that previously would not have been considered criminal. This was not merely an aberration of the Nazi era: the courts in the Federal Republic (West Germany) understood the term similarly.
Hence, a relatively close rendering of the recurring phrase would be "commits lewdness (as the active partner) with another man or allows such an abuse to be done to him"; the translation below opts for a slightly less awkward "engages as the active or passive partner in lewdness with another man".
§ 175 Lewdness between men
I. A man who engages as the active or passive partner in lewdness with another man is to be punished by imprisonment.
II. With an involved party who at the time of the act had not yet reached the age of twenty-one years, the Court can refrain from punishment in mild cases.
§ 175a Severe lewdness (Schwere Unzucht)
A punishment of up to ten years in the penitentiary, and even with mitigating circumstances no less than three months imprisonment for:
- 1. a man, who by force or by threat of harm to life and limb forces another man to engage in such an act as either the active or passive partner;
- 2. a man, who by abusing a dependency founded in a service-, work-, or employment-based relationship coerces another man into engaging in such an act as either the active or passive partner;
- 3. a man over twenty-one years old who entices a male under twenty-one years old to engage in such an act as either the active or passive partner;
- 4. a man who professionally offers himself for such an act as either the active or passive partner.
§ 175b Bestiality
Unnatural fornication of a man with a beast is to be punished by imprisonment; a sentence of loss of civil rights may also be passed.
The German-language title of § 175b is "Sodomie", the modern German-language equivalent of "bestiality
Zoophilia
Zoophilia, from the Greek ζῷον and φιλία is the practice of sex between humans and non-human animals , or a preference or fixation on such practice...
". In modern German, Sodomie does not carry the meaning anal intercourse at all. The now-dominant English-language meaning of the word "sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
" has been lost during the past centuries and nowadays is completely unknown to a native speaker of German. (See German-language article Sodomie.)
Version of June 25, 1969 (West Germany)
§ 175 Fornication between men
(1) Imprisonment of up to five years shall be the punishment for:
- 1. a man over eighteen years old who engages as the active or passive partner in lewdness with another man under the age of twenty-one;
- 2. a man, who by abusing a dependency founded in a service-, work-, or employment-based relationship coerces another man into engaging in such an act as either the active or passive partner;
- 3. a man who professionally offers himself for such an act as either the active or passive partner.
(2) In the case of paragraph 1 Number 2 the attempt is punishable.
(3) With an involved party who at the time of the act had not yet reached the age of twenty-one years, the Court can refrain from punishment.
§ 175b voided.
Version of November 23, 1973 (West Germany)
Besides the reduction of the age of consent, the 1973 amendment to the statute changes the wording. In place of Unzucht, it refers to sexuelle Handlungen ("sexual acts"). The language, although much milder in its connotations, still carries an echo of the previous language about active and passive partners: "sexuelle Handlungen ... vornimmt oder ... an sich vornehmen läßt" ("commits sexual acts or allows them to be committed"). It also, by its vagueness, is almost as broad as the wording in the 1935 statute.
§ 175 Homosexual Acts
(1) A man over eighteen years old, who commits sexual acts with a man under eighteen years or allows a man under eighteen years to commit such acts with him, will be punished with imprisonment of up to five years.
(2) The Court can refrain from punishment according to this section if
- 1. the person who committed the act was at the time of the act less than twenty-one years old or
- 2. taking into consideration the conduct of the victim, the wrong of the act is small.
Background
Anal sex
Anal sex is the sex act in which the penis is inserted into the anus of a sexual partner. The term can also include other sexual acts involving the anus, including pegging, anilingus , fingering, and object insertion.Common misconception describes anal sex as practiced almost exclusively by gay men...
between men changed. Already certainly perceived as a sin
Sin
In religion, sin is the violation or deviation of an eternal divine law or standard. The term sin may also refer to the state of having committed such a violation. Christians believe the moral code of conduct is decreed by God In religion, sin (also called peccancy) is the violation or deviation...
, for the first time, legal acts were adopted that made it a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
. Almost everywhere in Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
, the act became punishable by death.
In 1532, Charles V, Holy Roman Emperor
Charles V, Holy Roman Emperor
Charles V was ruler of the Holy Roman Empire from 1519 and, as Charles I, of the Spanish Empire from 1516 until his voluntary retirement and abdication in favor of his younger brother Ferdinand I and his son Philip II in 1556.As...
with the Constitutio Criminalis Carolina
Constitutio Criminalis Carolina
The Constitutio Criminalis Carolina is recognised as the first body of German criminal law...
produced a foundation for this principle of law, which remained valid in the Holy Roman Empire
Holy Roman Empire
The Holy Roman Empire was a realm that existed from 962 to 1806 in Central Europe.It was ruled by the Holy Roman Emperor. Its character changed during the Middle Ages and the Early Modern period, when the power of the emperor gradually weakened in favour of the princes...
until the end of the 17th century. In the words of Paragraph 116 of that code:
The punishment for fornication that goes against nature. cxvj. When a human commits fornication with a beast, a man with a man, a woman with a woman, they have also forfeited life. And they should be, according to the common custom, banished by fire from life into death.
In 1794, Prussia
Prussia
Prussia was a German kingdom and historic state originating out of the Duchy of Prussia and the Margraviate of Brandenburg. For centuries, the House of Hohenzollern ruled Prussia, successfully expanding its size by way of an unusually well-organized and effective army. Prussia shaped the history...
introduced the Allgemeines Landrecht (or Prussian Code), a major reform of laws that replaced the death penalty for this offense with a term of imprisonment. Paragraph 143 of that Code says:
Unnatural fornication, whether between persons of the male sex or of humans with beasts, is punished with imprisonment of six months to four years, with the further punishment of a prompt loss of civil rights.
Prussia was ahead of its time in this matter and was considered to be acting in the spirit of the Enlightenment, but they would soon be overtaken. In France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, the Napoleonic code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
of 1804 punished acts of this nature only when someone's rights were injured (i.e. in the case of a non-consensual
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
act), which had the effect of the complete legalization of homosexuality.
In the course of his conquests, Napoleon exported the Napoleonic code beyond France into a sequence of other states such as the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
. Bavaria
Bavaria
Bavaria, formally the Free State of Bavaria is a state of Germany, located in the southeast of Germany. With an area of , it is the largest state by area, forming almost 20% of the total land area of Germany...
, too, adopted the French model and in 1813 removed from its lawbooks all prohibitions of consensual sexual acts.
In view of these developments, two years before the 1871 founding of the German Empire
German Empire
The German Empire refers to Germany during the "Second Reich" period from the unification of Germany and proclamation of Wilhelm I as German Emperor on 18 January 1871, to 1918, when it became a federal republic after defeat in World War I and the abdication of the Emperor, Wilhelm II.The German...
, the Prussian kingdom, worried over the future of the paragraph, sought a scientific basis for this piece of legislation. The Ministry of Justice assigned a Deputation für das Medizinalwesen ("Deputation for medical knowledge"), including, among others, the famous physician
Physician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
s Rudolf Virchow
Rudolf Virchow
Rudolph Carl Virchow was a German doctor, anthropologist, pathologist, prehistorian, biologist and politician, known for his advancement of public health...
and Heinrich Adolf von Bardeleben
Heinrich Adolf von Bardeleben
Heinrich Adolf von Bardeleben was a German surgeon born in Frankfurt .He studied medicine at the Universities of Heidelberg, Giessen, Paris and Berlin, receiving his doctorate in Berlin in 1841. Later he became a professor of surgery at the University of Greifswald...
, who, however, stated in their appraisal of March 24, 1869 that they were unable to give a scientific grounding for a law that outlawed zoophilia and male homosexual intercourse, distinguishing them from the many other sexual acts that were not even considered as matters of penal law.
Nevertheless, the draft penal law submitted by Bismarck
Otto von Bismarck
Otto Eduard Leopold, Prince of Bismarck, Duke of Lauenburg , simply known as Otto von Bismarck, was a Prussian-German statesman whose actions unified Germany, made it a major player in world affairs, and created a balance of power that kept Europe at peace after 1871.As Minister President of...
in 1870 to the North German Confederation
North German Confederation
The North German Confederation 1866–71, was a federation of 22 independent states of northern Germany. It was formed by a constitution accepted by the member states in 1867 and controlled military and foreign policy. It included the new Reichstag, a parliament elected by universal manhood...
retained the relevant Prussian penal provisions, justifying this out of concern for "public opinion
Public opinion
Public opinion is the aggregate of individual attitudes or beliefs held by the adult population. Public opinion can also be defined as the complex collection of opinions of many different people and the sum of all their views....
":
Even though one can justify the omission of these penal provisions from the standpoint of MedicineMedicineMedicine is the science and art of healing. It encompasses a variety of health care practices evolved to maintain and restore health by the prevention and treatment of illness....
as well as on grounds taken from certain theories of criminal law the public's sense of justice (das Rechtsbewußtsein im Volke) views these acts not merely as vices but as crimes [...]".
German Empire
| Year | Charge | Convictions | ||
|---|---|---|---|---|
| 1902 | 364 | / | 393 | 613 |
| 1903 | 332 | / | 289 | 600 |
| 1904 | 348 | / | 376 | 570 |
| 1905 | 379 | / | 381 | 605 |
| 1906 | 351 | / | 382 | 623 |
| 1907 | 404 | / | 367 | 612 |
| 1908 | 282 | / | 399 | 658 |
| 1909 | 510 | / | 331 | 677 |
| 1910 | 560 | / | 331 | 732 |
| 1911 | 526 | / | 342 | 708 |
| 1912 | 603 | / | 322 | 761 |
| 1913 | 512 | / | 341 | 698 |
| 1914 | 490 | / | 263 | 631 |
| 1915 | 233 | / | 120 | 294 |
| 1916 | 278 | / | 120 | 318 |
| 1917 | 131 | / | 70 | 166 |
| 1918 | 157 | / | 3 | 118 |
| Middle column: Homosexuality / Bestiality | ||||
On January 1, 1872, exactly one year after it had first taken effect, the penal code of the North German Confederation became the penal code of the entire German Empire.
By this change, sexual intercourse between men became again a punishable offence in Bavaria as well. Almost verbatim from its Prussian model from 1794, the new Paragraph 175 of the imperial penal code specified:
Unnatural fornication, whether between persons of the male sex or of humans with beasts, is punished with imprisonment, with the further punishment of a prompt loss of civil rights.
Even in the 1860s, individuals such as Karl Heinrich Ulrichs
Karl Heinrich Ulrichs
for the periodical directory, see Ulrich's Periodicals DirectoryKarl-Heinrich Ulrichs , is seen today as the pioneer of the modern gay rights movement.-Early life:...
and Karl Maria Kertbeny had unsuccessfully raised their voices against the Prussian paragraph 143. In the Empire, more organized opposition began with the 1897 founding of the sexual-reformist Wissenschaftlich-humanitäres Komitee (WhK, Scientific-Humanitarian Committee
Scientific-Humanitarian Committee
The Scientific-Humanitarian Committee was founded in Berlin on the 14th or 15 May, 1897, to campaign for social recognition of homosexual, bisexual and transgender men and women, and against their legal persecution...
), an organization of notables rather than a mass movement, which tried to proceed against Paragraph 175 based on the thesis of the innate nature of homosexuality
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
.
This case was argued, for example, in an 1897 petition
Petition
A petition is a request to do something, most commonly addressed to a government official or public entity. Petitions to a deity are a form of prayer....
drafted by physician and WhK chairman Magnus Hirschfeld
Magnus Hirschfeld
Magnus Hirschfeld was a German physician and sexologist. An outspoken advocate for sexual minorities, Hirschfeld founded the Scientific Humanitarian Committee, which Dustin Goltz called "the first advocacy for homosexual and transgender rights."-Early life:Hirschfeld was born in Kolberg in a...
, urging the deletion of Paragraph 175; it gathered 6,000 signatories. One year later, SPD chairman August Bebel
August Bebel
Ferdinand August Bebel was a German Marxist politician, writer, and orator. He is best remembered as one of the founders of the Social Democratic Party of Germany.-Early years:...
brought the petition into the Reichstag, but failed to achieve the desired effect. On the contrary, ten years later the government laid plans to extend Paragraph 175 to women as well. Part of their "Scheme for a German Penal Code" (E 1909) reads:
The danger to family life and to youth is the same. The fact that there are more such cases in recent times is reliably testified. It lies therefore in the interest of morality as in that of the general welfare that penal provisions be expanded also to women.
Allowing time for the refinement of the draft, it was set to appear before the Reichstag no earlier than 1917. World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
and the defeat of the German Empire consigned it to the dustbin.
Weimar Republic
| Year | Charge | Convictions | ||
|---|---|---|---|---|
| 1919 | 110 | / | 10 | 89 |
| 1920 | 237 | / | 39 | 197 |
| 1921 | 485 | / | 86 | 425 |
| 1922 | 588 | / | 7 | 499 |
| 1923 | 503 | / | 31 | 445 |
| 1924 | 850 | / | 12 | 696 |
| 1925 | 1225 | / | 111 | 1107 |
| 1926 | 1126 | / | 135 | 1040 |
| 1927 | 911 | / | 118 | 848 |
| 1928 | 731 | / | 202 | 804 |
| 1929 | 786 | / | 223 | 837 |
| 1930 | 723 | / | 221 | 804 |
| 1931 | 618 | / | 139 | 665 |
| 1932 | 721 | / | 204 | 801 |
| Middle column: Homosexuality / Bestiality | ||||
There was a vigorous grassroots campaign against Paragraph 175 between 1919 and 1929, led by an alliance of the Gemeinschaft der Eigenen
Adolf Brand
Adolf Brand was a German writer, individualist anarchist and pioneering campaigner for the acceptance of male bisexuality and homosexuality.-Biography:...
and the Wissenschaftlich-humanitäre Komitee
Magnus Hirschfeld
Magnus Hirschfeld was a German physician and sexologist. An outspoken advocate for sexual minorities, Hirschfeld founded the Scientific Humanitarian Committee, which Dustin Goltz called "the first advocacy for homosexual and transgender rights."-Early life:Hirschfeld was born in Kolberg in a...
. But, much as during the time of the Empire, during the Weimar Republic
Weimar Republic
The Weimar Republic is the name given by historians to the parliamentary republic established in 1919 in Germany to replace the imperial form of government...
the parties of the left failed to achieve the abolition of Paragraph 175, because they lacked a parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
ary majority.
The plans of a center-right
Right-wing politics
In politics, Right, right-wing and rightist generally refer to support for a hierarchical society justified on the basis of an appeal to natural law or tradition. To varying degrees, the Right rejects the egalitarian objectives of left-wing politics, claiming that the imposition of equality is...
regime in 1925 to increase the penalties of Paragraph 175 came closer to fruition; but they, too, failed. In addition to paragraph 296 (which corresponded to the old paragraph 175), their proposed reform draft provided for a paragraph 297 to be included. The plan was that so-called "qualified cases" such as homosexual prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
, sex with young men under the age of 21, and sexual coercion of a man in a service or work situation would be classified as "severe cases", reclassified as felonies
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
(Verbrechen) rather than misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
s (Vergehen). This act would have pertained not only to homosexual intercourse but also to other homosexual acts such as, for example, mutual masturbation.
Both new paragraphs grounded themselves in protection of public health
Public health
Public health is "the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities and individuals" . It is concerned with threats to health based on population health...
:
It is to be assumed that it is the German view that sexual relationships between men are an aberration liable to wreck the character and to destroy moral feeling. Clinging to this aberration leads to the degeneration of the people and to the decay of its strength.
When this draft was discussed in 1929 by the judiciary committee of the Reichstag, the SPD
Social Democratic Party of Germany
The Social Democratic Party of Germany is a social-democratic political party in Germany...
, the KPD
Communist Party of Germany
The Communist Party of Germany was a major political party in Germany between 1918 and 1933, and a minor party in West Germany in the postwar period until it was banned in 1956...
, and the left-wing liberal DDP at first managed to mobilize a majority of 15 to 13 votes against Paragraph 296. This would have constituted legalization of consensual homosexuality between adult men. At the same time, a vast majority with only three KPD votes dissenting supported the introduction of the new Paragraph 297 (dealing with the so-called "qualified cases").
However, this partial success which the WhK characterized as "one step forward and two steps back" came to nought. In March 1930, the Inter-parliamentary Committee for the Coordination of Criminal Law Between Germany and Austria, by a vote of 23-to-21, placed back Paragraph 296 in the reform package. But the latter was never passed, because during the last years of the Weimar Republic, the years of the Präsidialkabinetts, the parliamentary legislative process generally ground to a halt.
The Nazi era
| Year | Adults | Youths under 18 |
|---|---|---|
| 1933 | 853 | 104 |
| 1934 | 948 | 121 |
| 1935 | 2106 | 257 |
| 1936 | 5320 | 481 |
| 1937 | 8271 | 973 |
| 1938 | 8562 | 974 |
| 1939 | 8274 | 689 |
| 1940 | 3773 | 427 |
| 1941 | 3739 | 687 |
| 1942 | 3963 | n/a |
| 1943* | 2218 | n/a |
| * 1943: 1st half-year doubled Sources: „Statistisches Reichsamt“ and Baumann 1968, p. 61. |
||
In 1935 the Nazis
Nazism
Nazism, the common short form name of National Socialism was the ideology and practice of the Nazi Party and of Nazi Germany...
exacerbated Paragraph 175 by redefining the crime as a felony and thus increasing the maximum penalty from six months' to five years' imprisonment. Further, by removing the adjective widernatürlich ("against nature") they removed the longtime tradition that the law applied only to penetrative intercourse. A criminal offense would now exist if "objectively the general sense of shame was offended" and subjectively "the debauched intention was present to excite sexual desire in one of the two men, or a third." [The quotations are from German case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, RGSt 73, 78, 80 f.] Mutual physical contact was no longer necessary.
Beyond that much as had already been planned in 1925 a new Paragraph 175a was created, punishing "qualified cases" as schwere Unzucht ("severe lewdness") with no less than one year and no more than ten years in the penitentiary. These included:
- sexual relations with a subordinate or employee in a work situation,
- homosexual acts with men under the age of 21,
- male prostitution.
"Unnatural fornication with a beast" was moved to Paragraph 175b.
According to the official rationale, Paragraph 175 was amended in the interest of the moral health of the Volk the German people because "according to experience" homosexuality "inclines toward plague-like propagation" and exerts "a ruinous influence" on the "circles concerned".
This aggravation of the severity of Paragraph 175 in 1935 increased the number of convictions tenfold, to 8,000 annually. Only about half of the prosecutions resulted from police work; about 40 percent resulted from private accusations (Strafanzeige) by non-participating observers, and about 10 percent were denouncements by employers and institutions. So, for example, in 1938 the Gestapo
Gestapo
The Gestapo was the official secret police of Nazi Germany. Beginning on 20 April 1934, it was under the administration of the SS leader Heinrich Himmler in his position as Chief of German Police...
received the following anonymous letter:
We a large part of the artists' block [of flats or studios] at Barnayweg ask you urgently to observe B., living with Mrs. F as a subtenant, who has remarkable daily visits from young men. This must not continue. [...] We ask you cordially to give the matter further observation.
In contradistinction to normal police, the Gestapo were authorized to take gay men into preventive detention
Preventive detention
Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime....
(Schutzhaft) of arbitrary duration without an accusation (or even after an acquittal
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
). This was often the fate of so-called "repeat offenders": at the end of their sentences, they were not freed but sent for additional "reeducation" (Umerziehung) in a concentration camp. Only about 40 percent of these pink triangle
Pink triangle
The pink triangle was one of the Nazi concentration camp badges, used to identify male prisoners who were sent there because of their homosexuality. Every prisoner had to wear a downward-pointing triangle on his or her jacket, the colour of which was to categorise him or her by "kind"...
prisoners whose numbers amounted to an estimated 10,000 survived the camps. Some of them, after their release by the Allied Forces, were placed back in prison, because they had not yet finished court-mandated terms of imprisonment for homosexual acts.
Development in East Germany
In the Soviet Occupied Zone that later became East Germany (see History of Germany since 1945History of Germany since 1945
As a consequence of the defeat of Nazi Germany in World War II Germany was split between the two global blocs in the East and West, a period known as the division of Germany. While seven million prisoners and forced laborers left Germany, over 10 million German speaking refugees arrived there from...
), the development of law was not uniform. The government of Thuringia
Thuringia
The Free State of Thuringia is a state of Germany, located in the central part of the country.It has an area of and 2.29 million inhabitants, making it the sixth smallest by area and the fifth smallest by population of Germany's sixteen states....
moderated Paragraphs 175 and 175a in a manner similar to that contemplated in the draft criminal code of 1925, while in the other states (Länder
States of Germany
Germany is made up of sixteen which are partly sovereign constituent states of the Federal Republic of Germany. Land literally translates as "country", and constitutionally speaking, they are constituent countries...
) the 1935 version of the statute remained in effect without changes. Although in 1946 the Committee for Law Examination of East Berlin
East Berlin
East Berlin was the name given to the eastern part of Berlin between 1949 and 1990. It consisted of the Soviet sector of Berlin that was established in 1945. The American, British and French sectors became West Berlin, a part strongly associated with West Germany but a free city...
specifically advised not to include § 175 StGB in a new criminal code, this recommendation had no consequences. The Provincial High Court in Halle
Halle, Saxony-Anhalt
Halle is the largest city in the German state of Saxony-Anhalt. It is also called Halle an der Saale in order to distinguish it from the town of Halle in North Rhine-Westphalia...
(Oberlandesgericht Halle, or OLG Halle) decided for Saxony-Anhalt
Saxony-Anhalt
Saxony-Anhalt is a landlocked state of Germany. Its capital is Magdeburg and it is surrounded by the German states of Lower Saxony, Brandenburg, Saxony, and Thuringia.Saxony-Anhalt covers an area of...
in 1948 that Paragraphs 175 and 175a were to be seen as injustice perpetrated by the Nazis, because a progressive
Progressivism
Progressivism is an umbrella term for a political ideology advocating or favoring social, political, and economic reform or changes. Progressivism is often viewed by some conservatives, constitutionalists, and libertarians to be in opposition to conservative or reactionary ideologies.The...
juridical development had been broken off and even been reversed. Homosexual acts were to be tried only according to the laws of the Weimar Republic.
In 1950, one year after being reconstituted as the German Democratic Republic
German Democratic Republic
The German Democratic Republic , informally called East Germany by West Germany and other countries, was a socialist state established in 1949 in the Soviet zone of occupied Germany, including East Berlin of the Allied-occupied capital city...
, the Berlin Appeal Court (Kammergericht Berlin) decided for all of East Germany to reinstate the validity of the old, pre-1935 form of Paragraph 175. However, in contrast to the earlier action of the OLG Halle, the new Paragraph 175a remained unchanged, because it was said to protect society against "socially harmful homosexual acts of qualified character". In 1954 the same court decided that Paragraph 175a in contrast to Paragraph 175 did not presuppose acts tantamount to sexual intercourse. Lewdness (Unzucht) was defined as any act that is performed to arouse sexual excitement and "violates the moral sentiment of our workers."
A revision of the criminal code in 1957 made it possible to put aside prosecution of an illegal action that represented no danger to socialist
Socialism
Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
society because of lack of consequence. This removed Paragraph 175 from the effective body of the law, because at the same time the East Berlin Court of Appeal (Kammergericht) decided that all punishments deriving from the old form of Paragraph 175 should be suspended due to the insignificance of the acts to which it had been applied. On this basis, homosexual acts between consenting adults ceased to be punished, beginning in the late 1950s.
On July 1, 1968, the GDR adopted its own code of criminal law. In it § 151 StGB-DDR provided for a sentence up to three years' imprisonment or probation for an adult (18 and over) who engaged in sexual acts with a youth (under 18) of the same sex. This law applied not only to men who have sex with boys but equally to women who have sex with girls.
On August 11, 1987 the Supreme Court of the GDR struck down a conviction under Paragraph 151 on the basis that "homosexuality, just like heterosexuality, represents a variant of sexual behavior. Homosexual people do therefore not stand outside socialist society, and the civil rights are warranted to them exactly as to all other citizens." One year later, the Volkskammer
Volkskammer
The People's Chamber was the unicameral legislature of the German Democratic Republic . From its founding in 1949 until the first free elections on 18 March 1990, all members of the Volkskammer were elected on a slate controlled by the Socialist Unity Party of Germany , called the National Front...
(the parliament of the GDR), in its fifth revision of the criminal code, brought the written law in line with what the court had ruled, striking Paragraph 151 without replacement. The act passed into law May 30, 1989. This removed all specific reference to homosexuality from East German criminal law.
Development in West Germany
| Year | Number | Year | Number | |
| 1946: | (~1152) | 1969: | 894 | |
| 1947: | (~1344) | 1970: | 340 | |
| 1948: | (~1536) | 1971: | 372 | |
| 1949: | (~1728) | 1972: | 362 | |
| 1950: | 2158 | 1973: | 373 | |
| 1951: | 2359 | 1974: | 235 | |
| 1952: | 2656 | 1975: | 160 | |
| 1953: | 2592 | 1976: | 200 | |
| 1954: | 2801 | 1977: | 191 | |
| 1955: | 2904 | 1978: | 177 | |
| 1956: | 2993 | 1979: | 148 | |
| 1957: | 3403 | 1980: | 164 | |
| 1958: | ~3486 | 1981: | 147 | |
| 1959: | ~3530 | 1982: | 163 | |
| 1960: | ~3406 | 1983: | 178 | |
| 1961: | 3196 | 1984: | 153 | |
| 1962: | 3098 | 1985: | 123 | |
| 1963: | 2803 | 1986: | 118 | |
| 1964: | 2907 | 1987: | 117 | |
| 1965: | 2538 | 1988: | 95 | |
| 1966: | 2261 | 1989: | 95 | |
| 1967: | 1783 | 1990: | 96 | |
| 1968: | 1727 | 1991: | 86 | |
| 1992: | 77 | |||
| 1993: | 76 | |||
| 1994: | 44 | |||
| Source: Rainer Hoffschildt 2002 * 1946–1949 complete estimate, based on the course around World War I * West Berlin and Saarland included before 1962 and 1961 respectively (in prior sources never considered!). * 1958–1960 Saarland Saarland Saarland is one of the sixteen states of Germany. The capital is Saarbrücken. It has an area of 2570 km² and 1,045,000 inhabitants. In both area and population, it is the smallest state in Germany other than the city-states... estimated (~59) |
||||
After World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, West Germany
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
(The Federal Republic of Germany) retained the 1935 version of Paragraph 175. On May 10, 1957 the Bundesverfassungsgericht upheld this decision, claiming that the paragraph was "not influenced by National Socialist [i.e., Nazi] politics to such a degree that it would have to be abolished in a free democratic state".
Between 1945 and 1969 about 100,000 men were indicted and about 50,000 men sentenced to prison. Many arrests, lawsuits, and proceedings in Frankfurt in 1950–'51 had serious consequences:
"A nineteen-year-old jumped off the Goetheturm after having received a summonsSummonsLegally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
, another fled to South America, another to Switzerland, a dental technician and his friend poisoned themselves with coal gas. In total there were six known suicides. Many of the accused lost their jobs."
During the administration of Chancellor Konrad Adenauer
Konrad Adenauer
Konrad Hermann Joseph Adenauer was a German statesman. He was the chancellor of the West Germany from 1949 to 1963. He is widely recognised as a person who led his country from the ruins of World War II to a powerful and prosperous nation that had forged close relations with old enemies France,...
's government, a draft penal code for West Germany (known as Strafgesetzbuch E 1962; it was never adopted) justified retaining paragraph 175 as follows:
Concerning male homosexuality, the legal system must, more than in other areas, erect a bulwark against the spreading of this vice, which otherwise would represent a serious danger for a healthy and natural life of the people.
On June 25, 1969, shortly before the end of the CDU SPD Grand Coalition headed by CDU Chancellor Kurt Georg Kiesinger
Kurt Georg Kiesinger
Kurt Georg Kiesinger was a German politician affiliated with the CDU and Chancellor of West Germany from 1 December 1966 until 21 October 1969.-Early career and wartime activities:...
, Paragraph 175 was reformed, in that only the "qualified cases" that were previously handled in §175a sex with a man less than 21 years old, homosexual prostitution, and the exploitation of a relationship of dependency (such as employing or supervising a person in a work situation) were retained. Paragraph 175b (concerning bestiality) also was removed.
On November 23, 1973 the social-liberal coalition of the SPD and the FDP passed a complete reform of the laws concerning sex and sexuality. The paragraph was renamed from "Crimes and misdemeanors against morality" into "Offenses against sexual self-determination", and the word Unzucht ("lewdness") was replaced by the equivalent of the term "sexual acts". Paragraph 175 only retained sex with minors as a qualifying attribute; the age of consent
Age of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
was lowered to 18 (compared to 14 for heterosexual sex).
In 1986 the Green Party
Alliance '90/The Greens
Alliance '90/The Greens is a green political party in Germany, formed from the merger of the German Green Party and Alliance 90 in 1993. Its leaders are Claudia Roth and Cem Özdemir...
and the first openly gay member of the German parliament tried to remove Paragraph 175 together with Paragraph 182. This would have meant a general age of consent of 14 years. This was opposed by the CDU, SPD, and FDP, and Paragraph 175 remained a part of German law for eight more years.
The deletion of Paragraph 175
In the course of reconciling the legal codes of the two German states after 1990, the BundestagBundestag
The Bundestag is a federal legislative body in Germany. In practice Germany is governed by a bicameral legislature, of which the Bundestag serves as the lower house and the Bundesrat the upper house. The Bundestag is established by the German Basic Law of 1949, as the successor to the earlier...
had to decide whether Paragraph 175 should be stricken entirely (as in the former East Germany) or whether the remaining West German form of the law should be extended to what had now become the eastern portion of the Federal Republic. In 1994, at the end of the period of reconciliation of laws, it was decided especially in view of the social changes that had occurred in the meantime to strike Paragraph 175 entirely from the legal code.
According to § 176 StGB (See German-language article § 176 StGB) the absolute minimum age of consent is now 14 years for all sexual acts irrespective of gender; in special cases, covered in § 182 StGB, an age of 16 years applies (See German-language article § 182 StGB). § 182 (2) StGB allows for prosecution as an Antragsdelikt
Antragsdelikt
In the criminal law of some countries, an Antragsdelikt is a category of offence which cannot be prosecuted without a complaint by the victim...
, a concept in German law that certain acts are treated as crimes only if the victim chooses to become a complainant. Further, § 182 (3) StGB allows the public prosecutor's office to pursue a case on the basis of its belief that there is a special public interest. Finally, § 182 (4) StGB allows the court to refrain from punishment if, taking into account the behavior of the victim, the wrongness of the accused's behavior appears small.
§ 182 StGB contains numerous terms without precise, clear legal definitions; critics have raised concerns that families can misuse this law to criminalize socially disapproved sexual relationships (e.g. a family that disapproved of a young person's homosexual relationship might be able to get that person's partner prosecuted). In Austria an analogous situation exists: like the German § 175 StGB, the Austrian § 209 StGB was stricken from the legal code; like the German § 182 StGB, the Austrian § 207b StGB is perceived by critics as having potential to be abused as a surrogate for the stricken law.
Partial rehabilitation of the victims
Desertion
In military terminology, desertion is the abandonment of a "duty" or post without permission and is done with the intention of not returning...
from the Wehrmacht
Wehrmacht
The Wehrmacht – from , to defend and , the might/power) were the unified armed forces of Nazi Germany from 1935 to 1945. It consisted of the Heer , the Kriegsmarine and the Luftwaffe .-Origin and use of the term:...
were vacated. The right
Right-wing politics
In politics, Right, right-wing and rightist generally refer to support for a hierarchical society justified on the basis of an appeal to natural law or tradition. To varying degrees, the Right rejects the egalitarian objectives of left-wing politics, claiming that the imposition of equality is...
-conservative
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
CSU-politician Norbert Geis
Norbert Geis
Norbert Geis is a German politician. He is a member of the CSU.Geis studied Philosophy, Theology and Law at the Universities of Freiburg and Würzburg...
called this general amnesty a "dishonor". This "dishonor" referred only to the deserters from the Wehrmacht, however, not to the homosexuals. Louder criticism came from the lesbian and gay movement, because the Bundestag left post-1945 judgements untouched, although the legal basis from the end of the war to 1969 was the same as in the Nazi era.
See also
- HeteronormativityHeteronormativityHeteronormativity is a term invented in 1991 to describe any of a set of lifestyle norms that hold that people fall into distinct and complementary genders with natural roles in life. It also holds that heterosexuality is the normal sexual orientation, and states that sexual and marital relations...
- Sodomy laws
- Paragraph 175 (film)Paragraph 175 (film)Paragraph 175 is a documentary film released in 2000, directed by Rob Epstein and Jeffrey Friedman, and narrated by Rupert Everett. The film was produced by Rob Epstein, Jeffrey Friedman, Janet Cole, Michael Ehrenzweig, Sheila Nevins and Howard Rosenman. The film chronicles the lives of several gay...
- Anders als die Andern: §175 (1919 film)
- Section 28Section 28Section 28 of the Local Government Act 1988 caused the controversial addition of Section 2A to the Local Government Act 1986 , enacted on 24 May 1988 and repealed on 21 June 2000 in Scotland, and on 18 November 2003 in the rest of Great Britain by section 122 of the Local Government Act 2003...
External links
- Gay Museum in Berlin, in German