Paragraph 175 Guide, Meaning , Facts, Information and Description

in Frankfurt in 1950–'51 due to prosecutions under Paragraph 175]] Paragraph 175 was a provision of the German Criminal Code from May 15, 1871 to March 10, 1994, which made male homosexuality a crime. 

Paragraph 175 would be referred to more formally as § 175 StGB (Germany). It may also be referred to (in English, but not in German) as Section 175. See German legal citation for explanation of this notation.

In some of its forms, the law also addressed bestiality.

Historical Overview

journalist Kurt Hiller published a collection of essays protesting Paragraph 175.]] Paragraph 175 was adopted in 1871. Beginning in the 1890s, sexual reformersers fought against the "disgraceful paragraph," 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 1929, a 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.

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, gays were not freed but 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 had them even 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 It was lowered to 18 in 1973, and finally repealed in 1994. East Germany had already reformed its more lenient version of the paragraph in 1968, and repealed it in 1988.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

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

1. 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.
2. 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.

§ 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 engage 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 .)

Version of June 25, 1969

§ 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 eighteen;

2. a man, who by abusing a dependency founded in a service-, work-, or employment-based relationship coerces another man into engage 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

§ 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 regulation if

1. the person who committed the act was at the time of the act less that twenty-one years old or

2. the behaviour of the person upon whom the act was performed amouts to ensnarement, such that the injustice of the act is small

Version of March 10, 1994

§ 175 Homosexual Acts voided

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.

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 (also known as the Code Civil) 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. (Jean Jacques Régis de Cambacérès, the primary author of the Napoleonic code, was himself a homosexual.)

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 law — the public's sense of justice (das Rechtsbewußtsein im Volke) views these acts not merely as vices but as crimes [...]".

German Empire

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 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:

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 like as in that of the general welfare that penal provisions be expanded also to women. [Stümke 1989, p. 50''][

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.

Weimar Republic

Both new paragraphs grounded themselves in protection of public 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. ]Stümke 1989, p. 65''[]

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 naught. 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

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.

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".

telex about arranging preventive detention of an "incorrigible homosexual"]] 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 of the resulted from private accusations (Strafanzeige) by non-participating observers and about 10 percent were denounced by employers and institutions. So, for example, in 1938 the Gestapo 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. [Pretzel 2000, 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, that is about 10,000 men, of these pink triangle prisoners 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

the right to receive a pension as a "victim of fascism" ("Opfer des Faschismus", hence "OdF").]]

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". [1]

Between 1945 and 1969 about 100,000 men were indicted and about 50,000 men sentenced to prison. A slew of 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." ]Kraushaar 1997, p. 62

During the administration of Chancellor Konrad Adenauer 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 againt 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 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 and lesbian sex).

Developments after 1990

In the course of reconciling the legal codes of the two German states after 1990, the Bundestag 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. 

§ 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 might 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, 2002 — a date chosen symbolically as "17.5" — despite votes to the contrary form the CDU/CSU und FDP, the Bundestag passed a supplement to the Act of Abolition of National Socialism (NS-Aufhebungsgesetzes). [1] 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". 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

• Heteronormativity, Sodomy laws

References

Much of the content of this article comes from . The following references are cited by that German-language article:

• 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 3871343072
• 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 3506774824
• 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 1933 – 1945. (Because of the Severe Punishment that Can Be Expected: The pursuit of homosexuals in Berlin 1933 – 1945) Berlin 2000. ISBN 3861490951
• Christian Schulz: § 175. (abgewickelt). : ... und die versäumte Wiedergutmachung. (§ 175. (abolished). : ... and the lack of compensation) Hamburg 1998. ISBN 3928983245
• Andreas Sternweiler: Und alles wegen der Jungs : Pfadfinderführer und KZ-Häftling: Heinz Dörmer. Berlin 1994. ISBN 3861490307
• Hans-Georg Stümke: Homosexuelle in Deutschland : Eine politische Geschichte. (Homosexuals in Germany: a political history) München 1989. ISBN 3406331300

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