§175
   HOME

TheInfoList



OR:

Paragraph 175, known formally a
§175 StGB
and also referred to as Section 175 in English, was a provision of the German Criminal Code from 15 May 1871 to 10 March 1994. It made sexual relations between males a crime, and in early revisions the provision also criminalized bestiality as well as forms of
prostitution Prostitution is a type of sex work that involves engaging in sexual activity in exchange for payment. The definition of "sexual activity" varies, and is often defined as an activity requiring physical contact (e.g., sexual intercourse, no ...
and underage sexual abuse. Overall, around 140,000 men were convicted under the law. The law had always been controversial and inspired the first homosexual movement, which called for its repeal. The statute drew legal influence from previous measures, including those undertaken by the
Holy Roman Empire The Holy Roman Empire, also known as the Holy Roman Empire of the German Nation after 1512, was a polity in Central and Western Europe, usually headed by the Holy Roman Emperor. It developed in the Early Middle Ages, and lasted for a millennium ...
and Prussian states. It was amended several times. The
Nazis Nazism (), formally named National Socialism (NS; , ), is the far-right politics, far-right Totalitarianism, totalitarian socio-political ideology and practices associated with Adolf Hitler and the Nazi Party (NSDAP) in Germany. During H ...
broadened the law in 1935 as part of the most severe persecution of homosexual men in history. It was one of the few Nazi-era laws to be retained in their original form in
West Germany West Germany was the common English name for the Federal Republic of Germany (FRG) from its formation on 23 May 1949 until German reunification, its reunification with East Germany on 3 October 1990. It is sometimes known as the Bonn Republi ...
, although
East Germany East Germany, officially known as the German Democratic Republic (GDR), was a country in Central Europe from Foundation of East Germany, its formation on 7 October 1949 until German reunification, its reunification with West Germany (FRG) on ...
reverted to the pre-Nazi version. In 1987, the law was ruled unconstitutional in East Germany, and it was repealed there in 1989. In West Germany, the law was revised in 1969, whereby the criminal liability of homosexual adults (then aged 21 and over) was abolished but remained applicable to sex with a man less than 21 years old, homosexual prostitution, and the exploitation of a relationship of dependency. The law was again revised in 1973 by lowering the age of consent to 18 years, and it was finally repealed in 1994.


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 Bebel Ferdinand August Bebel (; 22 February 1840 – 13 August 1913) was a German socialist activist and politician. He was one of the principal founders of the Social Democratic Party of Germany (SPD). Bebel, a woodworker by trade, co-founded the Sa ...
, head of the
Social Democratic Party The name Social Democratic Party or Social Democrats has been used by many political parties in various countries around the world. Such parties are most commonly aligned to social democracy as their political ideology. Active parties Form ...
(SPD); however, a petition in the Reichstag to abolish Paragraph 175 floundered in 1898. In 1907, a Reichstag Committee decided to broaden the paragraph to make lesbian sexual acts punishable as well, but debates about how to define female sexuality meant the proposal languished and was abandoned. 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 The German Democratic Party (, DDP) was a liberal political party in the Weimar Republic, considered centrist or centre-left. Along with the right-liberal German People's Party (, DVP), it represented political liberalism in Germany between 19 ...
(DDP); however, the rise of the
Nazi Party The Nazi Party, officially the National Socialist German Workers' Party ( or NSDAP), was a far-right politics, far-right political party in Germany active between 1920 and 1945 that created and supported the ideology of Nazism. Its precursor ...
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 over 8,000 per year by 1937."Statistisches Reichsamt", Jürgen Baumann: ''Paragraph 175'', Luchterhand, Darmstadt 1968, collected in: Hans-Georg Stümke, Rudi Finkler: ''Rosa Winkel, rosa Listen'', Rowohlt TB-V., Juli 1985, , S. 262. Furthermore, the
Gestapo The (, ), Syllabic abbreviation, abbreviated Gestapo (), was the official secret police of Nazi Germany and in German-occupied Europe. The force was created by Hermann Göring in 1933 by combining the various political police agencies of F ...
could transport suspected offenders to
concentration camp A concentration camp is a prison or other facility used for the internment of political prisoners or politically targeted demographics, such as members of national or ethnic minority groups, on the grounds of national security, or for exploitati ...
s without any legal justification at all (even if they had been acquitted or already served their sentence in jail). Thus, over 10,000 homosexual men were forced into concentration camps, where they were identified by the
pink triangle A pink triangle is a symbol for the LGBT community. Initially intended as a badge of shame, it was later reappropriated as a positive symbol of self-identity. It originated in Nazi Germany in the 1930s and 1940s as one of the Nazi concentratio ...
. The majority of them died there. While the Nazi persecution of homosexuals is reasonably well known today, far less attention has been given to the continuation of this persecution in post-war Germany. In 1945, after the concentration camps were liberated, some homosexual prisoners were recalled to custody to serve out their two-year 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 A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ru ...
. About 100,000 men were implicated in legal proceedings from 1945 to 1969, and about 50,000 were convicted. Some individuals accused under Paragraph 175 committed suicide. In 1969, the government eased Paragraph 175 by providing for an
age of consent The age of consent is the age at which a person is considered to be legally competent to consent to Human sexual activity, sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is un ...
of 21. The age of consent was lowered to 18 in 1973, and finally, in 1994, the paragraph was repealed and the age of consent lowered to 16, the same that is in force for heterosexual acts. East Germany had already reformed its more lenient version of the paragraph in 1968, and repealed it in 1988.


Background

Most sodomy-related laws in
Western civilization Western culture, also known as Western civilization, European civilization, Occidental culture, Western society, or simply the West, refers to the internally diverse culture of the Western world. The term "Western" encompasses the social no ...
originated from the growth of Christianity during
Late Antiquity Late antiquity marks the period that comes after the end of classical antiquity and stretches into the onset of the Early Middle Ages. Late antiquity as a period was popularized by Peter Brown (historian), Peter Brown in 1971, and this periodiza ...
. Germany is notable for having anti-sodomy regulation before Christianity; Roman historian
Tacitus Publius Cornelius Tacitus, known simply as Tacitus ( , ; – ), was a Roman historian and politician. Tacitus is widely regarded as one of the greatest Roman historians by modern scholars. Tacitus’ two major historical works, ''Annals'' ( ...
records execution of homosexuals in his book ''
Germania Germania ( ; ), also more specifically called Magna Germania (English: ''Great Germania''), Germania Libera (English: ''Free Germania''), or Germanic Barbaricum to distinguish it from the Roman provinces of Germania Inferior and Germania Superio ...
''. Christian condemnation of homosexuality reinforced these sentiments as Germany became baptised. In 1532, the
Constitutio Criminalis Carolina The Constitutio Criminalis Carolina (sometimes shortened to Carolina) is recognised as the first body of German criminal law (''Strafgesetzbuch''). It was also known as the '' Halsgerichtsordnung'' (Procedure for the judgment of capital crimes) of ...
produced a foundation for this principle of law, which remained valid in the
Holy Roman Empire The Holy Roman Empire, also known as the Holy Roman Empire of the German Nation after 1512, was a polity in Central and Western Europe, usually headed by the Holy Roman Emperor. It developed in the Early Middle Ages, and lasted for a millennium ...
until the end of the 18th century. In the words of Paragraph 116 of that code:
The punishment for fornication that goes against nature. 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 (; ; Old Prussian: ''Prūsija'') was a Germans, German state centred on the North European Plain that originated from the 1525 secularization of the Prussia (region), Prussian part of the State of the Teutonic Order. For centuries, ...
introduced the ''
Allgemeines Landrecht The General State Laws for the Prussian States (, ALR) were an important code (law), code of Prussia, promulgated in 1792 and codification (law), codified by Carl Gottlieb Svarez and Ernst Ferdinand Klein, under the orders of Frederick II of Pru ...
'', 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.
In
France France, officially the French Republic, is a country located primarily in Western Europe. Overseas France, Its overseas regions and territories include French Guiana in South America, Saint Pierre and Miquelon in the Atlantic Ocean#North Atlan ...
, the Revolutionary Penal Code of 1791 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 Napoleon Bonaparte (born Napoleone di Buonaparte; 15 August 1769 – 5 May 1821), later known by his regnal name Napoleon I, was a French general and statesman who rose to prominence during the French Revolution and led Military career ...
exported the French Penal Code beyond France into a sequence of other states such as the
Netherlands , Terminology of the Low Countries, informally Holland, is a country in Northwestern Europe, with Caribbean Netherlands, overseas territories in the Caribbean. It is the largest of the four constituent countries of the Kingdom of the Nether ...
. The
Rhineland The Rhineland ( ; ; ; ) is a loosely defined area of Western Germany along the Rhine, chiefly Middle Rhine, its middle section. It is the main industrial heartland of Germany because of its many factories, and it has historic ties to the Holy ...
and later
Bavaria Bavaria, officially the Free State of Bavaria, is a States of Germany, state in the southeast of Germany. With an area of , it is the list of German states by area, largest German state by land area, comprising approximately 1/5 of the total l ...
adopted the French model and removed from their lawbooks all prohibitions of consensual sexual acts. The 1851 Prussian criminal code justified the criminalization of homosexuality with reference to Christian morality, even though the prohibited act did not endanger any legal interest. Two years before the 1871 founding of the
German Empire The German Empire (),; ; World Book, Inc. ''The World Book dictionary, Volume 1''. World Book, Inc., 2003. p. 572. States that Deutsches Reich translates as "German Realm" and was a former official name of Germany. also referred to as Imperia ...
, 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 Rudolf Ludwig Carl Virchow ( ; ; 13 October 18215 September 1902) was a German physician, anthropologist, pathologist, prehistorian, biologist, writer, editor, and politician. He is known as "the father of modern pathology" and as the founder o ...
and Heinrich Adolf von Bardeleben, who stated in their appraisal of 24 March 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
Otto von Bismarck Otto, Prince of Bismarck, Count of Bismarck-Schönhausen, Duke of Lauenburg (; born ''Otto Eduard Leopold von Bismarck''; 1 April 1815 – 30 July 1898) was a German statesman and diplomat who oversaw the unification of Germany and served as ...
in 1870 to the
North German Confederation The North German Confederation () was initially a German military alliance established in August 1866 under the leadership of the Kingdom of Prussia, which was transformed in the subsequent year into a confederated state (a ''de facto'' feder ...
retained the relevant Prussian penal provisions, justifying this out of concern for "
public opinion Public opinion, or popular opinion, is the collective opinion on a specific topic or voting intention relevant to society. It is the people's views on matters affecting them. In the 21st century, public opinion is widely thought to be heavily ...
".


German Empire

On 1 January 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 (28 August 1825 – 14 July 1895) was a German lawyer, jurist, journalist, and writer. He is today regarded as a pioneer of sexology and the modern LGBT rights movement, gay rights movement. Ulrichs has been described as ...
and
Karl Maria Kertbeny Karl Maria Kertbeny (born Karl Maria Benkert, ; also Kertbeny Károly Mária; 28 February 1824 – 23 January 1882) was an Austrian-born Hungarian journalist, translator, memoirist and human rights campaigner. Kertbeny coined the words ''heteros ...
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.. Revised edition published 1995, . This case was argued, for example, in an 1897 petition drafted by physician and WhK chairman
Magnus Hirschfeld Magnus Hirschfeld (14 May 1868 – 14 May 1935) was a German physician, Sexology, sexologist and LGBTQ advocate, whose German citizenship was later revoked by the Nazi government.David A. Gerstner, ''Routledge International Encyclopedia of Queer ...
, urging the deletion of Paragraph 175; it gathered 6,000 signatories. One year later, SPD chairman
August Bebel Ferdinand August Bebel (; 22 February 1840 – 13 August 1913) was a German socialist activist and politician. He was one of the principal founders of the Social Democratic Party of Germany (SPD). Bebel, a woodworker by trade, co-founded the Sa ...
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 or the First World War (28 July 1914 – 11 November 1918), also known as the Great War, was a World war, global conflict between two coalitions: the Allies of World War I, Allies (or Entente) and the Central Powers. Fighting to ...
and the defeat of the German Empire consigned it to the dustbin.


Weimar Republic

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-humanitäres Komitee''. But, much as during the time of the Empire, during the
Weimar Republic The Weimar Republic, officially known as the German Reich, was the German Reich, German state from 1918 to 1933, during which it was a constitutional republic for the first time in history; hence it is also referred to, and unofficially proclai ...
the parties of the left failed to achieve the abolition of Paragraph 175, because they lacked a majority in the Reichstag.Stümke 1989, p. 65 The plans of a center-
right Rights are law, legal, social, or ethics, ethical principles of freedom or Entitlement (fair division), entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal sy ...
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 is a type of sex work that involves engaging in sexual activity in exchange for payment. The definition of "sexual activity" varies, and is often defined as an activity requiring physical contact (e.g., sexual intercourse, no ...
, 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 A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "''félonie''") to describe an offense that ...
(''Verbrechen'') rather than
misdemeanor A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than admi ...
s (''Vergehen''). This act would have pertained not only to homosexual intercourse but also to other homosexual acts such as, for example,
mutual masturbation Non-penetrative sex or outercourse is sexual activity that usually does not include sexual penetration, but some forms, particularly when termed ''outercourse'', include penetrative aspects, that may result from forms of fingering or oral sex ...
. Both new paragraphs grounded themselves in protection of
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". Analyzing the de ...
:
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
Social Democratic Party The name Social Democratic Party or Social Democrats has been used by many political parties in various countries around the world. Such parties are most commonly aligned to social democracy as their political ideology. Active parties Form ...
, the Communist Party, and the left-wing liberal
German Democratic Party The German Democratic Party (, DDP) was a liberal political party in the Weimar Republic, considered centrist or centre-left. Along with the right-liberal German People's Party (, DVP), it represented political liberalism in Germany between 19 ...
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 majoritywith only three KPD votes dissentingsupported the introduction of the new Paragraph 297 (dealing with the so-called "qualified cases"). However, this partial successwhich 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 '' Präsidialkabinette'', the parliamentary legislative process generally ground to a halt.


The Nazi era

In 1935, the
Nazis Nazism (), formally named National Socialism (NS; , ), is the far-right politics, far-right Totalitarianism, totalitarian socio-political ideology and practices associated with Adolf Hitler and the Nazi Party (NSDAP) in Germany. During H ...
strengthened Paragraph 175 by redefining the crime as a felony and thus increasing the maximum penalty from six months' to five years' imprisonment. Further, they removed the longtime tradition that the law applied only to 'intercourse-like' acts (meaning the police could not prosecute unless substantial proof of intercourse was given). 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". Mutual physical contact was no longer necessary. This formulation was fundamentally different from traditional
sodomy law A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term ''sodomy'' are rarely spelled out in the law, but are typically understood and defined by many courts and jurisdictions to include any ...
s, but similar to the law against
gross indecency Gross indecency is a crime in some parts of the English-speaking world, originally used to criminalize sexual activity between men that fell short of sodomy, which required penetration. The term was first used in British law in a statute of the ...
in the United Kingdom since 1885. Beyond thatmuch as had already been planned in 1925a 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: * homosexual acts forced through violence or threats (male rape), * 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 (this section applied to both men and women). According to the official rationale, Paragraph 175 was amended in the interest of the moral health of the ''
Volk The German noun ''Volk'' () translates to :wikt:people, people, both uncountable in the sense of ''people'' as in a crowd, and countable (plural ''Völker'') in the sense of ''People, a people'' as in an ethnic group or nation (compare the E ...
''the German peoplebecause "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 The (, ), Syllabic abbreviation, abbreviated Gestapo (), was the official secret police of Nazi Germany and in German-occupied Europe. The force was created by Hermann Göring in 1933 by combining the various political police agencies of F ...
received the following anonymous letter:
Wea large part of the artists' block f flats or studiosat Barnaywegask 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 19331945.'' (Because of the Severe Punishment that Can Be Expected: The pursuit of homosexuals in Berlin 19331945) Berlin 2000. , p. 23
In contradistinction to normal police, the ''
Gestapo The (, ), Syllabic abbreviation, abbreviated Gestapo (), was the official secret police of Nazi Germany and in German-occupied Europe. The force was created by Hermann Göring in 1933 by combining the various political police agencies of F ...
'' were authorized to take
gay men Gay men are male homosexuals. Some bisexual men, bisexual and homoromantic men may dually identify as ''gay'' and a number of gay men also identify as ''queer''. Historic terminology for gay men has included ''Sexual inversion (sexology), in ...
into
preventive detention Preventive detention is an imprisonment that is putatively justified for non- punitive purposes, most often to prevent further criminal acts. Preventive detention sometimes involves the detention of a convicted criminal who has served their sente ...
(''Schutzhaft'') of arbitrary duration without an accusation (or even after an
acquittal In common law jurisdictions, an acquittal means that the criminal prosecution has failed to prove that the accused is guilty beyond a reasonable doubt of the charge presented. It certifies that the accused is free from the charge of an of ...
). This was often the fate of so-called "repeat offenders": at the end of their sentences, they were not freed but sent for additional "re-education" (''Umerziehung'') in a
concentration camp A concentration camp is a prison or other facility used for the internment of political prisoners or politically targeted demographics, such as members of national or ethnic minority groups, on the grounds of national security, or for exploitati ...
. Only about 40 percent of these
pink triangle A pink triangle is a symbol for the LGBT community. Initially intended as a badge of shame, it was later reappropriated as a positive symbol of self-identity. It originated in Nazi Germany in the 1930s and 1940s as one of the Nazi concentratio ...
prisonerswhose numbers amounted to an estimated 10,000survived 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.Angelika von Wahl: How Sexuality Changes Agency: Gay Men, Jews, and Transitional Justice. In: Susanne Buckley-Zistel, Ruth Stanley (Editors): Gender in Transitional Justice (Governance and Limited Statehood). Palgrave Macmillan, 2011, p. 205.


After World War II


Development in the Soviet occupation zone and in East Germany

In the
Soviet occupation zone The Soviet occupation zone in Germany ( or , ; ) was an area of Germany that was occupied by the Soviet Union as a communist area, established as a result of the Potsdam Agreement on 2 August 1945. On 7 October 1949 the German Democratic Republ ...
that later became
East Germany East Germany, officially known as the German Democratic Republic (GDR), was a country in Central Europe from Foundation of East Germany, its formation on 7 October 1949 until German reunification, its reunification with West Germany (FRG) on ...
, the development of law was not uniform. The Provincial High Court in Halle (''Oberlandesgericht Halle, or OLG Halle'') decided for
Saxony-Anhalt Saxony-Anhalt ( ; ) is a States of Germany, state of Germany, bordering the states of Brandenburg, Saxony, Thuringia and Lower Saxony. It covers an area of and has a population of 2.17 million inhabitants, making it the List of German states ...
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 Socialism is an economic ideology, economic and political philosophy encompassing diverse Economic system, economic and social systems characterised by social ownership of the means of production, as opposed to private ownership. It describes ...
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 1 July 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 11 August 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 Volkskammer (, "People's Chamber") was the supreme power organ of East Germany. It was the only branch of government in the state, and per the principle of unified power, all state organs were subservient to it. The Volkskammer was initia ...
(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.Christian Schäfer: ''"Widernatürliche Unzucht"'' (2006), S. 253 ()


Development in West Germany

After
World War II World War II or the Second World War (1 September 1939 – 2 September 1945) was a World war, global conflict between two coalitions: the Allies of World War II, Allies and the Axis powers. World War II by country, Nearly all of the wo ...
, the victorious Allies demanded the abolition of all laws with specifically National Socialist content; however, they left it to
West Germany West Germany was the common English name for the Federal Republic of Germany (FRG) from its formation on 23 May 1949 until German reunification, its reunification with East Germany on 3 October 1990. It is sometimes known as the Bonn Republi ...
to decide whether or not the expansion of laws regulating male homosexual relationships falling under Paragraph 175 should be left in place. On May 10, 1957, the
Federal Constitutional Court The Federal Constitutional Court ( ; abbreviated: ) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law () of Germany. Since its inception with the beginning of the post-W ...
upheld the decision to retain the 1935 version, claiming that the paragraph was "not influenced by National Socialist .e., Nazipolitics 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. The rate of convictions for violation of Paragraph 175 rose by 44 percent, and in the 1960s, the number remained as much as four times higher than it had been in the last years of the Weimar Republic. Many arrests, lawsuits, and proceedings in Frankfurt in 1950–1951 had serious consequences.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. , p. 62 These Frankfurt Homosexual Trials of 1950/51 marked an early climax in the persecution of homosexual men in the Federal Republic of Germany, which showed clear continuities from the Nazi era, but took place under the auspices of the new Adenauer era. They were largely initiated by the Frankfurt public prosecutor's office, using the sex worker Otto Blankenstein as a key witness.Daniel Speier. "Die Frankfurter Homosexuellenprozesse zu Beginn der Ära Adenauer – eine chronologische Darstellung." ''Mitteilungen der Magnus-Hirschfeld-Gesellschaft'' 61/62 (2018): 47–72 The strong continuities between the Nazi era and postwar West Germany are partly due to the continuity in staffing of the police and judiciary, which was disrupted in
East Germany East Germany, officially known as the German Democratic Republic (GDR), was a country in Central Europe from Foundation of East Germany, its formation on 7 October 1949 until German reunification, its reunification with West Germany (FRG) on ...
. The retention of the Nazis' legal basis for the charges, however, was due to a conservative Christian political realignment; criminalization was strongly defended by some CDU/CSU politicians such as
Franz-Josef Wuermeling Franz-Josef Wuermeling (8 November 1900 – 7 March 1986) was a West German CDU politician and minister who served as Federal Minister for Family Affairs from 1953 to 1962. Early life and education Wuermeling was born in Charlottenburg, Berlin ...
and Adolf Süsterhenn. These "Catholic maximalists" faced increasing opposition from Protestants and the more liberal elements within their own party. Similar to the thinking during the Nazi Regime, the government argued that there was a difference between a homosexual man and a homosexual woman, and that because all men were assumed to be more aggressive and predatory than women, lesbianism would not be criminalized. Therefore, it was argued, while lesbianism violated nature, it did not present the same threat to society as did male homosexuality. First convening in 1954, the legal experts in the criminal code commission (Strafrechtskommission) continued to debate the future of Paragraph 175; while the constitutional court ruled it was not unconstitutional, this did not mean it should forever remain in force. It was therefore the commission's job to advise the Ministry of Justice and Chancellor Konrad Adenauer about the new form this law should take. While they all agreed homosexual activity was immoral, they were divided when it came to whether or not it should be allowed to be practiced between consenting adults in private. Due to their belief that homosexuals were not born that way, but rather, they fell victim to seduction, the Justice Ministry officials remained concerned that if freed from criminal penalty, adult homosexuals would intensify their "propaganda and activity in public" and put male youth at risk. During the administration of
Chancellor Chancellor () is a title of various official positions in the governments of many countries. The original chancellors were the of Roman courts of justice—ushers, who sat at the (lattice work screens) of a basilica (court hall), which separa ...
Konrad Adenauer Konrad Hermann Joseph Adenauer (5 January 1876 – 19 April 1967) was a German statesman and politician who served as the first Chancellor of Germany, chancellor of West Germany from 1949 to 1963. From 1946 to 1966, he was the first leader of th ...
'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
With new national Bundestag (West Germany's parliament) elections coming up, the Social Democratic Party was coming into power, first in 1966 as part of a broad coalition, and by 1969, with a parliamentary majority. With the Social Democrats holding the power, they were finally in a position to make key appointments in the Ministry of Justice and start implementing reform. In addition, demographic anxieties such as fear of declining birth rate no longer controlled the 1960s and homosexual men were no longer seen as a threat for not being able to reproduce. The role of the state was seen as protecting society from harm, and should only intervene in cases that involved force or the abuse of minors. On 25 June 1969, shortly before the end of the Christian Democratic Union (CDU)SPD Grand Coalition headed by CDU Chancellor
Kurt Georg Kiesinger Kurt Georg Kiesinger (; 6 April 1904 – 9 March 1988) was a German politician who served as the chancellor of West Germany from 1 December 1966 to 21 October 1969. Before he became Chancellor he served as Minister-President of Baden-Württembe ...
, Paragraph 175 was reformed, in that only the "qualified cases" that were previously handled in §175asex 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. Three days later, on June 28, 1969, the
Stonewall riots The Stonewall riots (also known as the Stonewall uprising, Stonewall rebellion, Stonewall revolution, or simply Stonewall) were a series of spontaneous riots and demonstrations against a police raid that took place in the early morning hours of ...
broke out in New York. With the 1969 reform in place, the acceptance of homosexual acts or homosexual identities for West Germans was far from in place. Most reformers agreed that decriminalizing sexual relations between adult men was not the same as advocating an acceptance of homosexual men. While the old view of "militarized" masculinity may have phased out, "family-centered" masculinity was now grounded in the traditional male, and being a proper man meant being a proper father, which was believed at the time to be a role a homosexual male could not fulfill. On 23 November 1973, the social-liberal coalition of the SPD and the Free Democratic Party 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 The age of consent is the age at which a person is considered to be legally competent to consent to Human sexual activity, sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is un ...
was lowered to 18 (compared to 14 for heterosexual sex). In 1986 the
Green Party A green party is a formally organized political party based on the principles of green politics, such as environmentalism and social justice. Green party platforms typically embrace Social democracy, social democratic economic policies and fo ...
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


Deletion of Paragraph 175

In the course of reconciling the legal codes of the two German states after 1990, the
Bundestag The Bundestag (, "Federal Diet (assembly), Diet") is the lower house of the Germany, German Federalism in Germany, federal parliament. It is the only constitutional body of the federation directly elected by the German people. The Bundestag wa ...
had to decide whether Paragraph 175 should be abolished 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 decidedespecially in view of the social changes that had occurred in the meantimeto strike Paragraph 175 entirely from the legal code. Paragraph 175 was repealed on 10 March 1994. According to § 176 StGB the absolute minimum age of consent is now 14 years for all sexual acts irrespective of the sex of the participants; in special cases, covered in § 182 StGB, an age of 16 years applies. § 182 (2) StGB allows for prosecution as an '' Antragsdelikt'', a concept in German law according to which 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 the belief that there is a special public interest. Finally, § 182 (4) StGB allows the court to refrain from punishment if the wrongness of the accused's behavior appears small. § 182 StGB contains numerous terms without precise legal definitions; critics have raised concerns that families can misuse this law to criminalize socially disapproved sexual relationships (e.g. a family disapproving of a young person's homosexual relationship might be able to prosecute their partner). 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.


Pardon of the victims

On 17 May 2002a date chosen symbolically as "17.5."the Bundestag passed a supplement to the ''NS-Aufhebungsgesetz'' ().Entwurf des Änderungsgesetzes zum NS-Aufhebungsgesetz - Bundestagdrucksache 14/8276
(archived)
By this supplement to the act, Nazi-era convictions of homosexuals and deserters from the
Wehrmacht The ''Wehrmacht'' (, ) were the unified armed forces of Nazi Germany from 1935 to 1945. It consisted of the German Army (1935–1945), ''Heer'' (army), the ''Kriegsmarine'' (navy) and the ''Luftwaffe'' (air force). The designation "''Wehrmac ...
were annulled. Louder criticism came from the lesbian and gay movement, because the Bundestag left post-1945 judgments untouched, although the legal basis from the end of the war to 1969 was the same as in the Nazi era. The issue of pardoning men convicted in the postwar era remained controversial. On 12 May 2016, Federal Minister of Justice,
Heiko Maas Heiko Josef Maas (; born 19 September 1966) is a German lawyerMarcus Jung (15 December 2022)�''Frankfurter Allgemeine Zeitung''. and former politician of the Social Democratic Party of Germany, Social Democratic Party (SPD) who served as the Mini ...
, announced that Germany was investigating the possibility of
pardon A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the j ...
ing and compensating all gay men convicted under Paragraph 175. In cases where victims had died still bearing a conviction, the government will instead make payments to gay rights groups. This was confirmed on 8 October 2016, when Maas laid out the compensation scheme and announced that the government was setting aside €30 million to cover claims. The law comprises both individual pardons and a collective pardon and the documenting of suffering caused by the law, with the full process expected to take up to five years. Those affected by the pardon can apply for a "vindication certificate", and relatives can apply for a posthumous pardon. Each person convicted will receive €3,000 compensation, plus €1,500 for each year spent in custody as a result of a conviction under Paragraph 175 – on average, a conviction carried a two-year sentence.
Bundestag The Bundestag (, "Federal Diet (assembly), Diet") is the lower house of the Germany, German Federalism in Germany, federal parliament. It is the only constitutional body of the federation directly elected by the German people. The Bundestag wa ...
member Volker Beck, who was a key figure in establishing a compensation fund for victims of Nazism, suggested that other losses suffered as a result of conviction under Paragraph 175, such as the loss of a job and resulting reduction in pension, should also be taken into account when deciding how much compensation to offer. In June 2017, the law was passed in the Bundestag by an overwhelming majority in all parties.Guardian: Germany to quash convictions of 50,000 gay men under Nazi-era law
, June 22, 2017.


See also

*
LGBT history LGBTQ history dates back to the first recorded instances of same-sex love, diverse gender identities, and sexualities in ancient civilizations, involving the history of lesbian, Gay men, gay, bisexuality, bisexual, transgender, and queer (LG ...
* LGBT rights in Germany *
LGBT history in Germany This is a list of events in Lesbian, Gay, Bisexual, Transgender, Queer and Intersex (LGBTQ+) history in Germany. Ancient * 98 – Germanic tribes executing homosexuals and sinking them into swamps are reported by Tacitus. The remains of such ...
*
Heteronormativity Heteronormativity is the definition of heterosexuality as the normative human sexuality. It assumes the gender binary (i.e., that there are only two distinct, opposite genders) and that sexual and marital relations are most fitting between peo ...
* '' Institut für Sexualwissenschaft'' * '' Different from the Others''


Notes


References

* * 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. * Christian Schulz: ''§ 175. (abgewickelt). : ... und die versäumte Wiedergutmachung.'' (§ 175. (abolished). : ... and the lack of compensation) Hamburg 1998. * Andreas Sternweiler: Und alles wegen der Jungs : ''Pfadfinderführer und KZ-Häftling: Heinz Dörmer.'' Berlin 1994.


External links


Gay Museum in Berlin
in German {{authority control 1871 in law 19th century in LGBTQ history Law of East Germany Gay history German criminal law German Empire Law of Prussia Legal history of Germany LGBTQ history in Germany Criminalization of male homosexuality Law of the Weimar Republic Law of Nazi Germany Persecution of LGBTQ people in Germany Repealed German legislation West Germany Sex crimes in Germany 1969 in law 1994 in law LGBTQ-related legislation