Paragraph 175

Paragraph 175 (known formally as §175 StGB; also known as Section 175 in English) 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.

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.

Historical overview

Paragraph 175 was adopted in 1871. Beginning in the 1890s, sexual reformers fought against the "disgraceful paragraph," [For this expression ("disgraceful paragraph") see, among others, KurtTucholsky, "Röhm", in "The Weimar Republic Sourcebook" University of California Press, 1994, ISBN 0520067754, p. 714: "We oppose the disgraceful paragraph 175 wherever we can; therefore, we maynot join voices with the chorus that would condemn a man because he is ahomosexual." The essay was originally published (in German) in "Die Weltbühne", No. 17 (April 26, 1932) 641.] and soon won the support of August Bebel, 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 various versions of Paragraph 175

For the original German language 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 issue is further complicated by the fact that the 1935 statute removed the previous qualifier "widernatürlich" ("against nature"). In the 1871 statute, in combination with "widernatürlich", "Unzucht" clearly meant anal sex. 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". 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.)"

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.

Version of March 10, 1994

"§ 175 Homosexual Acts" voided

Background

.

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:

The punishment for unchastity ("Vnkeusch") that goes against nature. In the case of an unchaste act ("Vnkeusch treibenn") of a human 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 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, 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 physicians 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":

Even though one can justify the omission of these penal provisions from the standpoint of Medicine as well as on grounds taken from certain theories of criminal lawndash the public's sense of justice ("das Rechtsbewußtsein im Volke") views these acts not merely as vices but as crimes [...] ".

German Empire

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 thatndash much as had already been planned in 1925ndash 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"ndash the German peoplendash because "according to experience" homosexuality "inclines toward plague-like propagation" and exerts "a ruinous influence" on the "circles concerned".

received the following anonymous letter:

Wendash a large part of the artists' block [of flats or studios] at Barnaywegndash 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.Andreas Pretzel: "Als Homosexueller in Erscheinung getreten." ("Going into combat as a homosexual") In Kulturring in Berlin e. V. (Hrsg.): "Wegen der zu erwartenden hohen Strafe" : Homosexuellenverfolgung in Berlin 1933ndash 1945." (Because of the Severe Punishment that Can Be Expected: The pursuit of homosexuals in Berlin 1933ndash 1945) Berlin 2000. ISBN 3-86149-095-1, p. 23]

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 prisonersndash whose numbers amounted to an estimated 10,000ndash 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.

After World War II

Development in East Germany

In the Soviet Occupied Zone that later became East Germany ("see History of Germany since 1945"), 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.

Development in West Germany

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". ["damit sollte nicht ausgeschlossen sein, daß diese ihrerseits zu der Auffassung kamen, gewisse Vorschriften seien so stark von nationalsozialistischem Geist geprägt, daß sie mit dem Rechtssystem eines demokratischen Staates unvereinbar und daher nicht mehr anzuwenden seien." [http://www.schwulencity.de/BVerfGE_6_389.html BVerfGE 6, 389 - Homosexuelle] , on SchwulenCity.de. Accessed 3 September 2006.]

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 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."Elmar Kraushaar: Unzucht vor Gericht : "Die 'Frankfurter Prozesse' und die Kontinuität des § 175 in den fünfziger Jahren." ("The 'Frankfurt Trials' and the continuity of § 175 in the Fifties") In Elmar Kraushaar (ed.): "Hundert Jahre schwul : Eine Revue." (One Hundred years of Homosexuality: a revue) Berlin 1997. S. 60–69. ISBN 3-87134-307-2, p. 62]

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:

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.Stümke 1989: p. 183]

On June 25, 1969, shortly before the end of the CDUndash 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 §175andash 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)ndash 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.

Developments after 1990

The deletion of Paragraph 175

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 decidedndash especially in view of the social changes that had occurred in the meantimendash 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.

Partial rehabilitation of the victims

On May 17, 2002ndash a date chosen symbolically as "17.5"ndash 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").de icon [http://web.archive.org/web/20041015180827/www.lsvd.de/recht/ns09.html Entwurf des Änderungsgesetzes zum NS-Aufhebungsgesetz - Bundestagdrucksache 14/8276] (archived)] 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. [de icon [http://dip.bundestag.de/btp/14/14237.pdf Stenographic report of the Bundestag, 14th legislative period, 237th sitting (2002-05-17)] , page 23741 (C)] 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.

ee also

*Heteronormativity
*Sodomy laws
*Paragraph 175 (film)
*
*Section 28

Notes

References

*Much of the content of this article comes from [http://de.wikipedia.org/wiki/Paragraph_175 the equivalent German-language wikipedia article] (retrieved September 30, 2004).
*Burkhard Jellonnek: "Homosexuelle unter dem Hakenkreuz : Die Verfolgung von Homosexuellen im Dritten Reich." (Homosexuals under the Swastika: the pursuit of homosexuals in the Third Reich) Paderborn 1990. ISBN 3-506-77482-4
*Christian Schulz: "§ 175. (abgewickelt). : ... und die versäumte Wiedergutmachung." (§ 175. (abolished). : ... and the lack of compensation) Hamburg 1998. ISBN 3-928983-24-5
*Andreas Sternweiler: Und alles wegen der Jungs : "Pfadfinderführer und KZ-Häftling: Heinz Dörmer." Berlin 1994. ISBN 3-86149-030-7