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Paragraph 175 was a provision of the German Criminal Code from May 15, 1871 to March 10, 1994, which made male homosexuality a crime.
The statute was amended numerous times. Nazi Germany greatly exacerbated its severity in 1935. East Germany reverted to the old version of the law in 1950, limited its effect to sex with youths under 18 in 1968, and abolished it entirely in 1988. West Germany retained the Nazi-era statute until 1969, when it was limited to "qualified cases"; it was further attenuated in 1973 and finally revoked entirely after German reunification in 1994.
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.
Paragraph 175 was adopted in 1871. Beginning in the 1890s, sexual reformers 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.
In 1935, the Nazis exacerbated the law so that the courts could pursue any "lewd act" whatsoever, even one involving no physical contact, such as masturbating next to each other. Convictions multiplied by a factor of ten to about 8,000 per year. Furthermore, the Gestapo could transport gay people to concentration camps without any legal justification at all (even if they had been acquitted or already served their sentence in jail). Thus, between 5,000 and 15,000 homosexual men were forced into concentration camps, where they were identified by the pink triangle. The majority of them died there.
While the Nazi persecution of homosexuals is reasonably well-known today, far less attention had been given to the continuation of this persecution in post-war Germany. In 1945, when concentration camps were liberated, 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.
For the original German language texts of the statutes, as well as quotations from earlier sodomy statutes, see the equivalent German-language BambooWeb article.
§ 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.
In the statute of 1935 (and that of 1969), there is a recurring phrase with minor variations: in its first appearance it is "...mit einem anderen Mann Unzucht treibt oder sich von ihm zur Unzucht missbrauchen lässt". The connotations of this are difficult to render into English for two reasons:
Hence, a relatively close rendering of the recurring phrase would be "commits lewdness (as the active partner) with another man or allows such an abuse to be done to him"; the translation below opts for a slightly less awkward "engages as the active or passive partner in lewdness with another man".
§ 175 Lewdness between men
I. A man who engages as the active or passive partner in lewdness with another man is to be punished by imprisonment.
II. With an involved party who at the time of the act had not yet reached the age of twenty-one years, the Court can refrain from punishment in mild cases.
§ 175a Severe lewdness (Schwere Unzucht)
A punishment of up to ten years in the penitentiary, and even with mitigating circumstances no less than three months imprisonment for:§ 175b Bestiality
- 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.
Unnatural fornication of a man with a beast is to be punished by imprisonment; a sentence of loss of civil rights may also be passed.
The German-language title of § 175b is "Sodomie", the modern German-language equivalent of "bestiality". In modern German, Sodomie does not carry the meaning anal intercourse at all. The now-dominant English-language meaning of the word "sodomy" has been lost during the past centuries and nowadays is completely unknown to a native speaker of German. (See German-language article Sodomie.)
§ 175 Fornication between men
(1) Imprisonment of up to five years shall be the punishment for:(2) In the case of paragraph 1 Number 2 the attempt is punishable.
- 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.
(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.
Besides the reduction of the age of consent, the 1973 amendment to the statute changes the wording. In place of Unzucht, it refers to sexuelle Handlungen ("sexual acts"). The language, although much milder in its connotations, still carries an echo of the previous language about active and passive partners: "sexuelle Handlungen ... vornimmt oder ... sich vornehmen lässt" ("commits sexual acts or allows them to be committed"). It also, by its vagueness, is almost as broad as the wording in the 1935 statute.
§ 175 Homosexual Acts
(1) A man over eighteen years old, who commits sexual acts with a man under eighteen years or allows a man under eighteen years to commit such acts with him, will be punished with imprisonment of up to five years. (2) the Court can refrain from punishment according to this 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
§ 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.
In 1532, Charles V, Holy Roman Emperor with the Constitutio Criminalis Carolina produced a foundation for this principle of law, which remained valid in the Holy Roman Empire until the end of the 17th century. In the words of Paragraph 116 of that code:
The punishment for unchastity (Vnkeusch) that goes against nature. In the case of an unchaste act (Vnkeusch treibenn) of a human with a beast, a man with a man, a woman with a woman, they have also forfeited life. And they should be, according to the common custom, banished by fire from life into death.
In 1794, Prussia introduced the Allgemeines Landrecht (or 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 [...]".
| Year | Charge | Convictions | ||
|---|---|---|---|---|
| 1902 | 364 | / | 393 | 613 |
| 1903 | 332 | / | 289 | 600 |
| 1904 | 348 | / | 376 | 570 |
| 1905 | 379 | / | 381 | 605 |
| 1906 | 351 | / | 382 | 623 |
| 1907 | 404 | / | 367 | 612 |
| 1908 | 282 | / | 399 | 658 |
| 1909 | 510 | / | 331 | 677 |
| 1910 | 560 | / | 331 | 732 |
| 1911 | 526 | / | 342 | 708 |
| 1912 | 603 | / | 322 | 761 |
| 1913 | 512 | / | 341 | 698 |
| 1914 | 490 | / | 263 | 631 |
| 1915 | 233 | / | 120 | 294 |
| 1916 | 278 | / | 120 | 318 |
| 1917 | 131 | / | 70 | 166 |
| 1918 | 157 | / | 3 | 118 |
| Middle column: Homosexuality / Bestiality | ||||
On January 1, 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 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.
| Year | Charge | Convictions | ||
|---|---|---|---|---|
| 1919 | 110 | / | 10 | 89 |
| 1920 | 237 | / | 39 | 197 |
| 1921 | 485 | / | 86 | 425 |
| 1922 | 588 | / | 7 | 499 |
| 1923 | 503 | / | 31 | 445 |
| 1924 | 850 | / | 12 | 696 |
| 1925 | 1225 | / | 111 | 1107 |
| 1926 | 1126 | / | 135 | 1040 |
| 1927 | 911 | / | 118 | 848 |
| 1928 | 731 | / | 202 | 804 |
| 1929 | 786 | / | 223 | 837 |
| 1930 | 723 | / | 221 | 804 |
| 1931 | 618 | / | 139 | 665 |
| 1932 | 721 | / | 204 | 801 |
| Middle column: Homosexuality / Bestiality | ||||
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, lacking a parliamentary majority. Indeed, 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), the 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.
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 |- |}
In 1935 the Nazis exacerbated Paragraph 175, adopting the earlier proposal of redefining the crime as a felony. Further, by removing the adjective widernatürlich ("against nature") they removed the longtime tradition that the law applied only to penetrative intercourse. A criminal offense would now exist if "objectively the general sense of shame was offended" and subjectively "the debauched intention was present to excite sexual desire in one of the two men, or a third." [The quotations are from German case law, RGSt 73, 78, 80 f.] Mutual physical contact was no longer necessary.
Beyond that – much as had already been planned in 1925 – a new Paragraph 175a was created, punishing "qualified cases" as schwere Unzucht ("severe lewdness") with up to ten years in the penitentiary. These included:
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".
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.
In 1950 East Germany (The German Democratic Republic) reinstated the old, pre-1935 form of Paragraph 175. Men over 21 could be punished for acts of homosexual intercourse. Homosexual newspapers and organizations were still prohibited. Also, Paragraph 175a (qualified cases) was retained from the Nazi era. Later 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. In the 1960s, East Germany ceased to punish homosexual acts between consenting adults. On July 1, 1968, the law was changed to reflect already-existing practice: homosexual acts between men over 18 years of age were legalized. A new Paragraph 151 put this reform of Paragraph 175 into law; in 1988, even that was dropped, removing all reference to male homosexuality from the criminal law.
| Year | Number | Year | Number | |
| 1950: | 1920 | 1969: | 894 | |
| 1951: | 2167 | 1970: | 340 | |
| 1952: | 2476 | 1971: | 272 | |
| 1953: | 2388 | 1972: | 362 | |
| 1954: | 2564 | 1973: | 373 | |
| 1955: | 2612 | 1974: | 235 | |
| 1956: | 2774 | 1975: | 160 | |
| 1957: | 3124 | 1976: | 200 | |
| 1958: | 3182 | 1977: | 191 | |
| 1959: | 3530 | 1978: | 177 | |
| 1960: | 3134 | 1979: | 148 | |
| 1961: | 3005 | 1980: | 164 | |
| 1962: | 3098 | 1981: | 147 | |
| 1963: | 2803 | 1982: | 163 | |
| 1964: | 2907 | 1983: | 178 | |
| 1965: | 3538 | 1984: | 153 | |
| 1966: | 3261 | 1985: | 123 | |
| 1967: | 1783 | 1986: | 118 | |
| 1968: | 1727 | 1987: | 117 |
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".
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).
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.
According to § 176 StGB (See German-language article § 176 StGB) the absolute minimum age of consent is now 14 years for all sexual acts irrespective of gender; in special cases, covered in § 182 StGB, an age of 16 years applies (See German-language article § 182 StGB). § 182 (2) StGB allows for prosecution as an 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). 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.
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