Paragraph 175, known formally as §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 acts between males a crime, and in early revisions the provision also criminalized bestiality as well as forms of prostitution 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 and Prussian states. It was amended several times. The Nazis 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, although East Germany 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 In 1987, the law was ruled unconstitutional in East Germany, and it was repealed there in 1989.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 The law was again revised in 1973 by lowering the age of consent to 18 years, and it was finally repealed in 1994.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, like Magnus Hirschfeld, fought against the "disgraceful paragraph",For this expression ("disgraceful paragraph") see, among others, Kurt Tucholsky, "Röhm", in The Weimar Republic Sourcebook University of California Press, 1994, , p. 714: "We oppose the disgraceful paragraph 175 wherever we can; therefore, we may not join voices with the chorus that would condemn a man because he is a homosexual." 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); 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 (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 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 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.
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. 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 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 originated from the growth of Christianity during Late Antiquity. Germany is notable for having anti-sodomy regulation before Christianity; Roman historian Tacitus records execution of homosexuals in his book Germania.Gade, Kari Ellen. “HOMOSEXUALITY AND RAPE OF MALES IN OLD NORSE LAW AND LITERATURE.” Scandinavian Studies, vol. 58, no. 2, 1986, pp. 124–141. JSTOR, www.jstor.org/stable/40918734 . 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."Straff der vnkeusch, so wider die Natur beschicht. cxvj. ITem so eyn mensch mit eynem vihe, mann mit mann, weib mit weib, vnkeusch treiben, die haben auch das leben verwürckt, vnd man soll sie der gemeynen gewonheyt nach mit dem fewer vom leben zum todt richten." - Die Peinliche Gerichtsordnung Kaiser Karls V (Carolina), ed. and comm. by Friedrich-Christian Schroeder (Suttgart: Reclam, 2000).
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.1794, Allgemeines Landrecht of Prussia
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. 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.
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 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 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 in 1870 to the North German Confederation retained the relevant Prussian penal provisions, justifying this out of concern for "public opinion".
German Empire +Table 1: Prosecutions under § 175 (1902–1918) Year Charge Convictions1902 364 / 393 6131903 332 / 289 6001904 348 / 376 5701905 379 / 381 6051906 351 / 382 6231907 404 / 367 6121908 282 / 399 6581909 510 / 331 6771910 560 / 331 7321911 526 / 342 7081912 603 / 322 7611913 512 / 341 6981914 490 / 263 6311915 233 / 120 2941916 278 / 120 3181917 131 / 70 1661918 157 / 3 118 Middle column: Homosexuality / Bestiality 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.1872, Imperial Penal Code of Prussia
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.. Revised edition published 1995, .
Berlin police, led by , did not seriously enforce Paragraph 175. In 1885, responsibility for enforcing the law came under the Department of Blackmail and Homosexuals (). The joint department meant that the police became effective at prosecuting blackmail, which was a common threat regarding homosexuality, and gay men led a relatively open life in the city.
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 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 and the defeat of the German Empire consigned it to the dustbin.
Weimar Republic +Table 2: Prosecutions under § 175 (1919–1933) Year Charge Convictions1919 110 / 10 891920 237 / 39 1971921 485 / 86 4251922 588 / 7 4991923 503 / 31 4451924 850 / 12 6961925 1225 / 111 11071926 1126 / 135 10401927 911 / 118 8481928 731 / 202 8041929 786 / 223 8371930 723 / 221 8041931 618 / 139 6651932 721 / 204 801 Middle column: Homosexuality / Bestiality There was a vigorous grassroots campaign against Paragraph 175 between 1919 and 1929, led by an alliance of the Gemeinschaft der Eigenen 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.Stümke 1989, p. 65