Paragraph 175 – An Overview

StGB ©DPA

By Sebastién Tremblay

At the turn of the century, TEDDY recognized the importance of remembrance and praised Rob Epstein and Jeffrey Friedman’s “Paragraph 175”, an outstanding documentary about the dreadful German law criminalizing homosexuality. Almost two decades later, historians have shown how homosexuals suffered under National Socialism and many have fought for the memory of the victims. Lesser known is the fate of countless homosexuals after the war, the appalling story of the continuities of such an injustice into the success story of the Federal Republic.

This year’s focus is on the struggle of the members of our community who made it through these dark times, but also on the injustice of such a crime, still lingering like an open wound in German history. TEDDY is seizing the momentum of the present discussions on rehabilitation and reparations for the survivors and victims of §175. Our focus is on the unjust and unrighteous treatment of homosexuality in Germany after the war until the complete repeal of the law in the 1990s.

Scene #1: The origins

The German prosecution of masculine homosexuality originates, like many other things, in Prussia. Actually, the 19th century had seen some degree of laxity toward same-sex sexuality. Bavaria, namely, was back then the first territory to exempt almost every form of eroticism between two men from prosecution. On the other hand, several other German-speaking states were still impeaching sexuality between consenting men, chiefly Prussia, Saxony, Bremen and Hamburg. It is also interesting to note that Austria was the only German-speaking state to punish sexuality between women. These distinctions would however come to an end as Prussia took steps forward to standardize and “homogenize” the various penal codes of the newly formed North German Confederation. Notably, Bismarck ordered his ministry of justice to form a commission to study the laws against sodomy. The Prussian penal code was then used as a template for the revision of a unified set of laws. The Prussian Medical Affairs Board, under the hospice of its chairman, the Berlin pathologist Rudolf Virchow, deliberated in 1869 and could not ascertain why sodomy between two consenting men should be prohibited, let alone prosecuted. Despite the committee’s report, a miscellaneous news item of the time helped the balance to shift in another direction.

People with knowledge of LGBTQI history know that our communities were and are connected to various scandals. The story of §175 will rings a much too familiar bell. In 1867, two horrible crimes were committed in the borough of Friedrichshain and authorities were fast on condemning male homosexuals. In fact, two young boys were atrociously mutilated and the media coverage of the time linked the sexual violence committed on these two youngsters with homosexuality. Rapidly, the main suspect’s name, Zastrow, became Berlin slang for non-consensual sex. The verb “zastrieren” became synonym for rape. It’s in this context that the Prussian cultural minister Heinrich von Müller insisted on the importance to condemn homosexuality in the new penal code. In May 1870, appealing to the “people’s sense of rights and wrong” (Rechtsbewusstsein des Volkes) §175 cemented the future of homosexuality throughout the confederation and condoned persecution of same-sex sexuality between men. Ironically, the Federal Constitutional Court of the newly founded Federal Republic of Germany argued in the same direction in 1957, and cited the irremediable difference between men and women, a sense of morality and a presumed social sense of right and wrong to consider the discrimination of homosexual men as constitutional.

The application of §175 during the subsequent Weimar era has been a contentious subject among historians. Portrayed by many as a new epoch of sexual permissiveness and thought-provoking new research, the Republic of Weimar was still a time of uncertainty for many homosexual men or people suspected of homosexuality. Blackmailed, surveyed, and followed, these men were able to create a certain small community in the broader sense of the term, while evolving in the loopholes of a system that had not changed its stance on homosexuality since the fall of the Emperor.

Scene # 2: National Socialism

Although § 175 definitely precedes National Socialism, the NSDAP’s victory remains unequivocally a milestone in the history of the persecution of various forms of homosexualities in Germany. After the Nazis came to power, their virilist views on society and their perspectives on reproductive work made it clear that homosexuality would not be tolerated. For the Nazis, same-sex relationships were on the same level of venereal diseases. Considered an affliction, it could be treated; violently forced out of German men. Consequently, it also meant that the Volksgemeinschaft needed to be protected from the dangers of such an infection. From brothels established by the Schutzstaffel (SS) to protect German soldiers from the “delinquency” of same-sex desires, to the castration of “recidivists”, the Nazis unleashed an impressive witch-hunt against homosexuals or those considered homosexuals.

Determined to eradicate the “affliction”, National Socialist officials provided modification to the text of the law in June 1935. Not only did they change the phrasing of the law, but they also added two subparagraphs to the existing one: §§175a and 175b.

The minor alteration of the first paragraph is important to understand how the persecution of homosexuality reached its paroxysm after 1935. The new reinforced law considered an attack on the general sense of shame or the intention of debauchery as an act of felony. This understanding of the law widely broadened the possibilities of persecution, as the second paragraph, §175a, created a new category of heavy cases of profanities, usually: male prostitution, relationship with a subordinate or sexual relationship with a man under the age of 21. Men accused under §175a usually ended in concentration camps where they were branded as “Pink Triangles” and did not score high in the camp hierarchies. Historians know that the fate of these men in concentrations camps like Sachsenhausen was horrendous. Branded as “perverts” they were subjects of the violence of the guards, but also of other prisoners.

If much has been written on the fate of these men before and during the war, historians have shown how their persecutions did not end with the chance and opportunity of Liberation. As previously stated, the prosecution of homosexuality predates the Nazi dictatorship. However, the 1935 version of §175 and subsequent paragraphs were not abrogated by the Allies or by the first governments of the Federal Republic. Actually they were an integrative part of common law during the Adenauer era. The historian of religion and anti-§175 activist Hans Joachim Schoeps once provocatively said: “for homosexuals, the Third Reich actually only ended in 1969”.

Scene #3: Years of anxiety

Fast-forwar half a decade after the war. The rushed aspects of denazification had much implication for those who were convicted under § 175 and § 175a, as they could be facing once again their torturers after Liberation or be accused under evidence combined following national socialist ideology. For example, Paul Groth, chief judge of the Hamburger Landesgericht declared at the start of a trial in 1946, that homosexual should be drown like kittens, since they were all communists. Additionally, the persecuted also seemed well aware of the continuities with the difficult years behind them. In that sense, an anonymous reader of the Swiss homophile magazine Der Kreis complained in August 1950 that many of the police tactics used by the new West German police forces were a similar reminder of the tactics used by the Gestapo to survey, arrest and blackmail homosexual men.

Even if many Nazi laws and decrees were abolished during the first months of the Allies’ Occupation, many others remained. 175 and §175a were only reformed in 1969, as they were not perceived as being National Socialist in their core aspect. In fact, because male homosexuality was considered a crime before the NSDAP took power, the survivors who had been sent to the camps because of their sexuality or perceived sexuality were denied the status of victim of fascism. They were considered by many to be criminals who served their time. Some of them were even condemned again under §175, because they didn’t serve their complete sentence.

Even leftist organizations and organizations of survivors, like the “Union of the Persecuted of the Nazi Regime” (VVN), refused association with homosexuality. For instance, Andreas K. was violently repudiated as he tried to register his membership at the end of the 1940s: “They raised their hands and cried, ‘You bunch of dirty pigs’”. The reaction of officials wasn’t better if not worse. For example, as the London Sunday Express interviewed the then mayor of Dachau during that time period, the principal interested declared that: “you must remember that many criminals and homosexuals were in Dachau. Do you want a memorial for such people?”

When Adenauer and the CDU/CSU took power, backed by the Allied Forces, the situation changed, but the horror continued. The creation of the 1953 Family Ministry opened the door to a unified governmental sexual and mores politic based on moral and religious grounds. Commentators from the time period didn’t seem to have problems to use the work of known National Socialist. As §175 was not depicted as inherently National-Socialist in its origin (which is true), the sexual “research” done by prominent Nazi was measured objective enough to be considered expertise. This corpus influenced most of the studies in the Adenauer era and eventually climaxed in 1957 when the Federal Constitutional Court of the Federal Republic of Germany declared the discrimination of male homosexuals to be legal. This decision was rendered on the basis that such “perversion” went against the “normal” distinction between men and women and therefore was a menace to the newly formed country. Many so-called experts who testified for the court were the authors of books condemning same-sex desire and sexuality as being immoral, abnormal and ironically connecting it to the rise of fascism.

Persecutions of marginalized sexualities became associated with the protection of adolescents. Based on the expertise we just mentioned, but also based on countless magazines columns, editorials and works of fiction, homosexuality, but also sex outside and before marriage, turned out to be the #1 concern and threat toward influential adolescents who, it was said, already suffered from an absent father figure and the confusion of the Occupation.

This gave new legal reasons to the different police organs to survey and record the movements of homosexuals across the Republic. The police effectively used the pre-existent lists from the Weimar and Nazi eras, but also received a new pretext to monitor known cruising spots where homosexuals would meet, the Tiergarten park in Berlin for instance. Consequently, they organized raids in gay clubs and ballrooms based on the simple rumours that one or more young teenagers would haven been lured. The law can directly be linked to a strengthening and amplification of persecutions based on §§ 175 and 175a. The way the law was voted in the Bundestag also mirrored the position of the Adenauer administration and the way this fight for purity was being portrayed by the government. The Bavarian representative Franz Josef Strauss (CSU) and future premier of Bavaria infamously asked every MP present to stand up and say if he or she was for or against the law. In that way, he said that every citizen would know who had and who was missing a Christian conscience.

All in all, homosexuals were handled as enemies of the state way into the first decade of the Federal Republic. Still considered criminals, they faced judiciary consequences similar to those allowed by the sharpening of § 175 under the Nazis and denied relief for victims. The nature of the sentence in post-war Germany isn’t comparable to the methods used by the Nazis during their time in power, but the nature of the offense remained the same. A brief overview of the numbers of sentenced alleged homosexuals confirms the continuity between both regimes: 5.320 men in 1936 and 3.530 in 1959.

Finally, the paragraph was reformed in 1969 when the Union was forced to make some concession to the SPD, but about 100 000 men had been indicted and about 50 000 had been sentenced to prison. Nevertheless, the decriminalization of consensual same-sex relations between men should not be paralleled to a complete acceptance of homosexuality. The pernicious association with perversion and paedophilia remained. The 1970s, finally saw another reform of the paragraph, rephrasing it to only considerer sex with minors to be an issue and lowering the age of consent to 18 (it was 14 for heterosexual sex). When the Green Party tried to get rid of the paragraph all together at the end of the 1980s (in order to lower the age of consent to 14 for both homosexual and heterosexual sex) it met swift opposition from the Union, the SPD and the FDP.

Scene #4: Dealing with the past

Like many other aspects of German history, the unification of the Federal Republic of Germany with the German Democratic Republic brought the issue back to the table. The newly formed Bundestag had to decide the future of §175 like they had to decide the future of countless other laws. Indeed, the GDR had already removed all references to homosexuality from criminal Law in 1989 and had reformed §175 in 1968. In 1994, the German government decided to get rid of the paragraph altogether, citing the profound societal changes and the existence of laws criminalizing non-consensual sex.

In 2002, despite opposition by the CDU/CSU and FDP, the Bundestag amended the Act of Abolition of National Socialism and vacated Nazi convictions of homosexual men and deserter of the Wehrmacht (the name of the German Army during National Socialism). Nonetheless, this amendment left untouched the convictions under §175 until 1969, even though the law remained infamously connected to the NSDAP reform of 1935. This attracted numerous criticisms from gay and lesbian pressure or activist groups.

15 years have passed and justice still hasn’t been made! Germany’s present Federal Minister of Justice, Heiko Maas (SPD) announced in May last year a project to pardon all men convicted under §175. The project was confirmed in last October. A mere €30 million will be set aside by the government for compensations. Victims or their relatives will have to apply for a certificate in order to touch financial compensation: €3,000 for the conviction plus €1,500 for each additional imprisoned year. The projected law will also offer pardon for individuals and consider the collective harms done to countless of homosexual men. For example, the minster advanced the idea of a fund that could be created and administered by a federal foundation. It would have the important mission of educating the future generations about the damages done and the ills of homophobia.

However, 2017 is an election year and a fast settlement or resolution on any form of compensation remains unsure. Many voices from the CDU/CSU persist in their opposition to the project, some even evoking the perpetual, cruel and dangerous comparison between homosexuality and paedophilia. For example, some MPs expressed their concern that such law would pardon men convicted for child-abuse! Judges have also expressed their hostility to the project, appealing to the so-called impossibility to amend for something that was committed under the legal rule of Law. They say it would set a dangerous precedent.

Members of the LGBTQI communities have also articulated critiques to Maas’ endeavour. In fact, many consider the law to come too late and by such, a deliberated focus on individual compensation let a bitter taste of injustice in the mouth of many. The focus on trialled cases also ignored the many consequences of §175: the lost of jobs, the destruction of family, the anxiety, the impossibilities of sexual freedom and the general trauma suffered by many innocents.

Scene #5: Responsibility. Taking a stand!

Many films presented by TEDDY during the last 30 years related the stories of these men and this is why we decided to focus on the subject this year. TEDDY is convinced that 2017 will be an important year for our communities. It is necessary to keep the different layers of government accountable for the crimes of the past and an election year offers us a platform to voice our concerns. We will not be forgotten! They will not be forgotten! Naturally, TEDDY isn’t affiliated to any political party. Nonetheless, as an integrate part of the LGBTQI communities, and as an exchange space, it is our responsibilities to denounce injustice and call-out for reparation!

The German situation is one of many arcs connected to an international story of persecutions. The Lavender scare in the United States, the decriminalization debates in the UK and the systemic discrimination of homosexuals in Canada in the long post-war era are many other examples in the Western Hemisphere. This on-going debate on reparation is just another facet of the problem. In the same vein, the rise of new discriminatory measures against trans* individuals remind us that for many, the time is not for reparation, but still an constant fight to survive. The same can be said about the discrimination and criminalization of homosexualities on all continents where people are forced into hiding.

TEDDY has been a precursor on the festival circuit, it is now time to use this recognition and make us heard. By existing in all their shades and colours, the various members of our communities should be proud to be united under the same rainbow. TEDDY opens a window on the positive and negative realities all around the world. We see a connection between the fight for reparation and justice in the Federal Republic and the LGBTQI fight for survival in Uganda. We see another one between the discrimination of trans* people and gender non-conforming individuals in the Americas and in Western Europe. The question is neither to identify the main enemy nor to find the perfect victim.

This year’s poster reflects a new decade for TEDDY, a decade where we will still be loud and clear, hand in hand, together. As we have done in the past, we are proud to present you a variety of films, celebrating the joys and expressing the disquiet of the LGBTQI communities. The act of showing these films is still political. This year TEDDY remembers that much needs to be done, in Germany and elsewhere. As Queer Nation used to chant on the streets in the United States: “We’re here! We’re Queer! Get used to it!”

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