Paragraph 175
Paragraph 175 (§ 175 StGB) was a provision of the German Criminal Code that criminalized sexual acts between adult males, punishing such "unnatural fornication" with imprisonment of up to five years.[1] Enacted on May 15, 1871, as part of the unified Criminal Code for the newly formed German Empire, the law originated from earlier Prussian and North German Confederation penal codes and reflected longstanding prohibitions on male same-sex intercourse rooted in moral and legal traditions across Europe.[2] While enforcement prior to 1933 averaged around 1,000 convictions annually, the Nazi regime intensified prosecutions after seizing power in 1933, revising the paragraph in June 1935 to encompass a broader range of "lewd" behaviors between men, even without penetration or emission, which facilitated arbitrary arrests and led to approximately 53,000 convictions and the internment of about 10,000 men in concentration camps by 1945.[3] Postwar, the law persisted in both West and East Germany—repealed in the German Democratic Republic in 1968 but only partially reformed in the Federal Republic in 1969 to decriminalize acts between men over 21—before its complete abolition in unified Germany on March 10, 1994, to eliminate discriminatory disparities in age of consent and prior convictions.[4] The provision's longevity underscores its basis in pre-Nazi legal norms rather than solely National Socialist innovation, though its harshest application under the Third Reich marked a defining escalation in state-enforced penalties against male homosexuality.[5]Legal Origins and Initial Scope
Prussian Foundations and 1871 Codification
The Prussian Allgemeines Landrecht für die Preußischen Staaten of 1794 established early modern foundations for criminalizing male homosexual acts by prohibiting "unnatural fornication" (widernatürliche Unzucht) between males, with penalties of imprisonment from six months to four years, marking a shift from medieval death penalties toward codified restraint while upholding moral condemnation.[5] This provision drew on inherited European legal traditions, including Roman statutes against illicit sexual unions (stuprum) and, more proximately, canon law doctrines that classified sodomy as a peccatum contra naturam—a grave ecclesiastical offense warranting secular enforcement under Christian ethical norms emphasizing procreative purpose in sexual relations.[6] These elements reflected causal views of such acts as disruptive to social order and familial structures, prioritizing empirical alignment with biological reproduction over individual autonomy. Following Prussian legal reforms, including the 1851 penal code that refined these principles, the framework influenced national unification efforts.[5] In 1871, amid the proclamation of the German Empire under Prussian hegemony after the Franco-Prussian War, Paragraph 175 was enshrined in the Reichsstrafgesetzbuch—the first unified imperial criminal code—to supplant varying state laws, many of which had decriminalized sodomy under Napoleonic influence in southern territories but retained northern prohibitions.[7] The codified text read: "Unnatural sexual intercourse (widernatürliche Unzucht) committed between males shall be punished by imprisonment of not less than one month nor more than five years, with the possibility of hard labor."[8] This standardization prioritized Prussian conservative morals, embedding penalties calibrated to deter acts deemed incompatible with prevailing standards of decency and national cohesion during industrialization and state-building.[7]Original Text and Intended Punishments
The original Paragraph 175, codified in the Reichsstrafgesetzbuch on May 15, 1871, read: "Unzucht wider die Ordnung der Natur, begangen mit einem Mann oder mit einem Thier, wird mit Gefängniß bestraft. Ist die Unzucht öffentlichen Aergerniß erregend, so wird sie mit Gefängniß von sechs Monaten bis zu fünf Jahren bestraft. Ist der Thäter durch die That berufs- oder gewerbsmäßig thätig, so wird Gefängniß nicht unter sechs Monaten verhängt. An einem Knaben unter 14 Jahren begangene Unzucht wider die Ordnung der Natur wird mit Gefängniß nicht unter einem Jahre bestraft."[8] This provision criminalized "unnatural fornication" specifically with a male or animal, drawing from Prussian legal precedents in the Allgemeines Landrecht.[7] The law's scope was deliberately narrow, applying only to penetrative acts between males that were deemed analogous to coitus, thereby excluding mutual masturbation, kissing, or other non-penetrative male-male contact absent aggravating factors; female homosexuality was entirely omitted from its purview.[6][5] Punishments centered on imprisonment, with baseline penalties for private acts but escalation for public scandal (six months to five years), habitual or professional offenders (minimum six months), or acts involving males under 14 (minimum one year), underscoring a primary legislative aim to shield adolescents from predatory corruption.[8][3] This framework reflected 19th-century concerns with upholding public decency, fortifying traditional family units against perceived threats from sodomy and pederasty, and standardizing disparate state laws under imperial unification, without broader moral policing of consensual adult conduct.[7][6]Enforcement in the Pre-Nazi Era
German Empire Period
During the German Empire from 1871 to 1918, Paragraph 175 was enforced sparingly, resulting in an estimated 10,000 convictions over the 47-year period, or roughly 200–250 annually across a population exceeding 60 million.[9] [10] Prosecutions were predominantly limited to cases involving public acts of indecency, coercion, or participation of minors under 14, as judicial interpretations required concrete evidence of "unnatural fornication" such as penetrative intercourse, excluding mere mutual masturbation or non-physical intimacy.[11] This restrictive application stemmed from evidentiary challenges in private consensual encounters, which rarely prompted complaints or led to successful trials without witnesses or admissions. Enforcement reflected prevailing bourgeois moral standards and concerns over military discipline, with police and courts viewing violations as corrosive to family structures, youth protection, and the Prussian-influenced ethos of order amid industrialization's social upheavals.[12] Cases clustered in urban areas like Berlin and Hamburg, where denser populations and anonymous public spaces increased detection risks, accounting for a disproportionate share of proceedings despite rural conservatism suppressing reports.[13] Authorities emphasized recidivism, imposing harsher sentences—up to five years' imprisonment—on repeat offenders to signal deterrence against perceived societal decay, though acquittal rates hovered around 50% due to proof burdens. The law faced no substantial reform advocacy yielding results, as conservative elites and the judiciary upheld it as a safeguard against moral laxity in an era of economic transformation and imperial expansion, prioritizing stability over liberalization.[14] Early petitions by figures like Magnus Hirschfeld in the 1890s garnered limited Reichstag support, failing amid broader resistance to challenging traditional gender roles and national vigor.Weimar Republic Liberalization Attempts
During the Weimar Republic (1919–1933), activist and scientific efforts sought to challenge Paragraph 175 amid a period of relative cultural openness, though these initiatives yielded no legal reforms. The Scientific-Humanitarian Committee (WhK), established by Magnus Hirschfeld in 1897, renewed its petition drives in the 1920s, collecting signatures from intellectuals, artists, and some politicians to urge the Reichstag to decriminalize consensual male homosexuality.[15] These campaigns drew on emerging sexological research positing homosexuality as a natural variation rather than a pathology, yet they encountered resistance from conservative lawmakers and societal norms prioritizing family structures.[7] Parliamentary consideration peaked in 1929 when the Reichstag Judiciary Committee debated potential amendments, reflecting fleeting momentum from Weimar's progressive factions, but the proposal stalled without a vote, undermined by economic crises like hyperinflation in 1923 and the onset of the Great Depression in 1929.[16] Paragraph 175 persisted unchanged, as reformers prioritized broader penal code revisions without targeting sexual offenses specifically. Enforcement varied by locality, with urban police in Berlin exercising discretion amid visible subcultures, but rural areas maintained stricter application. Cultural liberalization manifested in Berlin's cabarets, nightlife, and Hirschfeld's Institute for Sexual Science, which hosted lectures and provided counseling, fostering private tolerance for homosexual expression without altering legal prohibitions.[17] Greater visibility, however, correlated with modestly rising convictions under Paragraph 175, averaging around 1,000 annually by the late 1920s, as increased public awareness prompted more denunciations and opportunistic prosecutions despite informal leniency in cosmopolitan settings.[18] The law's retention underscored limits to Weimar's experimentalism, with reform efforts eclipsed by political fragmentation and ascending conservative backlash.