Paragraph 175

Paragraph 175 was adopted in 1871, shortly after Germany was unified. Beginning in the 1890s, sexual reformers fought against the "disgraceful paragraph",[1] and soon won the support of August Bebel, head of the Social Democratic Party (SPD). However, a petition in the Reichstag to abolish Paragraph 175 foundered in 1898.[2] 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.[3] 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.[2] Although modified at various times, the paragraph remained part of German law until 1994.[2]

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.[4] Convictions multiplied by a factor of ten to over 8,000 per year by 1937.[5] 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, over 10,000 homosexual men were forced into concentration camps, where they were identified by the pink triangle. The majority of them died there.[6]

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.[4] 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.[7] 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.[4] Some individuals accused under Paragraph 175 committed suicide. In 1969, the government eased Paragraph 175 by providing for an age of consent of 21.[8] The age of consent was lowered to 18 in 1973, and finally, in 1994, the paragraph was repealed and the age of consent lowered to 16, the same that is in force for heterosexual acts.[8] East Germany had already reformed its more lenient version of the paragraph in 1968, and repealed it in 1988.[8]

Burning of the accused sodomites, Richard Puller von Hohenburg and Anton Mätzler, outside the walls of Zürich, 1482 (Spiezer Schilling)

Most sodomy-related laws in Western civilization originated from the growth of Christianity during Late Antiquity.[9] Germany is notable for having anti-sodomy regulation before Christianity; Roman historian Tacitus records execution of homosexuals in his book Germania.[10][11] Christian condemnation of homosexuality reinforced these sentiments as Germany became baptised. In 1532, 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 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.[12]

In 1794, Prussia introduced the Allgemeines Landrecht, 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.[13]

In France, 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.[14] In the course of his conquests, Napoleon exported the French Penal Code beyond France into a sequence of other states such as the Netherlands. The Rhineland and later Bavaria adopted the French model and removed from their lawbooks all prohibitions of consensual sexual acts.[14]

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.[15] 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 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.[16] 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".[16]

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.[17]

Even in the 1860s, individuals such as Karl Heinrich Ulrichs and Karl Maria Kertbeny had unsuccessfully raised their voices against the Prussian paragraph 143.[2] 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.[18]

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.[18] 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 as in that of the general welfare that penal provisions be expanded also to women.[19]

Allowing time for the refinement of the draft, it was set to appear before the Reichstag no earlier than 1917. World War I and the defeat of the German Empire consigned it to the dustbin.

There was a vigorous grassroots campaign against Paragraph 175 between 1919 and 1929, led by an alliance of the Gemeinschaft der Eigenen and the Wissenschaftlich-humanitäres Komitee. But, much as during the time of the Empire, during the Weimar Republic the parties of the left failed to achieve the abolition of Paragraph 175, because they lacked a majority in the Reichstag.[20]

The plans of a center-right regime in 1925 to increase the penalties of Paragraph 175 came closer to fruition; but they, too, failed. In addition to paragraph 296 (which corresponded to the old paragraph 175), their proposed reform draft provided for a paragraph 297 to be included. The plan was that so-called "qualified cases" such as homosexual prostitution, sex with young men under the age of 21, and sexual coercion of a man in a service or work situation would be classified as "severe cases", reclassified as felonies (Verbrechen) rather than misdemeanors (Vergehen). This act would have pertained not only to homosexual intercourse but also to other homosexual acts such as, for example, mutual masturbation.[20]

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.[20]

When this draft was discussed in 1929 by the judiciary committee of the Reichstag, the Social Democratic Party, the Communist Party, and the left-wing liberal German Democratic Party 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.[21] 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").[21]

However, this partial success – which the WhK characterized as "one step forward and two steps back"[22] – 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.[21][22]

In 1935, the Nazis 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).[23] 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".[24] Mutual physical contact was no longer necessary.[25] This formulation was fundamentally different from traditional sodomy laws, but similar to the law against gross indecency in the United Kingdom since 1885.[26]

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.[25] 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 people – because "according to experience" homosexuality "inclines toward plague-like propagation" and exerts "a ruinous influence" on the "circles concerned".[27]

A Gestapo 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.[5] Only about half of the prosecutions resulted from police work; about 40 percent resulted from private accusations (Strafanzeige) by non-participating observers, and about 10 percent were denouncements by employers and institutions. So, for example, in 1938 the Gestapo received the following anonymous letter:

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.[28]

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 "re-education" (Umerziehung) in a concentration camp. Only about 40 percent of these pink triangle prisoners – whose numbers amounted to an estimated 10,000 – survived the camps.[6] 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.[29]

• LGBT history
• LGBT rights in Germany
• LGBT history in Germany
• Heteronormativity
• Institut für Sexualwissenschaft
• Anders als die Andern

• Huneke, Samuel Clowes (2022). States of Liberation: Gay Men between Dictatorship and Democracy in Cold War Germany. University of Toronto Press. ISBN 978-1-4875-4213-9.
• 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

Wikimedia Commons has media related to § 175 StGB.

• Gay Museum in Berlin, in German