Paragraph 175

The statute drew legal influence from previous measures, including those undertaken by the Holy Roman Empire and Prussian states.

[9] Germany is notable for having anti-sodomy regulation before Christianity; Roman historian Tacitus records execution of homosexuals in his book Germania.

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.

[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 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.

[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.

[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.

[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").

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.

[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".

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".

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.

[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).

[30] However, in contrast to the earlier action of the OLG Halle, the new Paragraph 175a remained unchanged, because it was said to protect society against "socially harmful homosexual acts of qualified character".

[30] A revision of the criminal code in 1957 made it possible to put aside prosecution of an illegal action that represented no danger to socialist society because of lack of consequence.

[32] On 11 August 1987, the Supreme Court of the GDR struck down a conviction under Paragraph 151 on the basis that "homosexuality, just like heterosexuality, represents a variant of sexual behavior.

One year later, the Volkskammer (the parliament of the GDR), in its fifth revision of the criminal code, brought the written law in line with what the court had ruled, striking Paragraph 151 without replacement.

On May 10, 1957, the Federal Constitutional Court upheld the decision to retain the 1935 version, 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".

The rate of convictions for violation of Paragraph 175 rose by 44 percent, and in the 1960s, the number remained as much as four times higher than it had been in the last years of the Weimar Republic.

The retention of the Nazis' legal basis for the charges, however, was due to a conservative Christian political realignment; criminalization was strongly defended by some CDU/CSU politicians such as Franz-Josef Wuermeling and Adolf Süsterhenn.

[36] First convening in 1954, the legal experts in the criminal code commission (Strafrechtskommission) continued to debate the future of Paragraph 175; while the constitutional court ruled it was not unconstitutional, this did not mean it should forever remain in force.

[36] During the administration of Chancellor Konrad Adenauer's 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 against the spreading of this vice, which otherwise would represent a serious danger for a healthy and natural life of the people.

With the Social Democrats holding the power, they were finally in a position to make key appointments in the Ministry of Justice and start implementing reform.

[36] On 25 June 1969, shortly before the end of the Christian Democratic Union (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.

[36] On 23 November 1973, the social-liberal coalition of the SPD and the Free Democratic Party passed a complete reform of the laws concerning sex and sexuality.

[43][failed verification] This was opposed by the CDU, SPD, and FDP,[citation needed] and Paragraph 175 remained a part of German law for eight more years.

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.

[47] On 17 May 2002 – a date chosen symbolically as "17.5" – the Bundestag passed a supplement to the NS-Aufhebungsgesetz (law on the annulment of national socialist unjust verdicts in the criminal justice [de; fr]).

[49] Louder criticism came from the lesbian and gay movement, because the Bundestag left post-1945 judgments untouched, although the legal basis from the end of the war to 1969 was the same as in the Nazi era.

On 12 May 2016, Federal Minister of Justice, Heiko Maas, announced that Germany was investigating the possibility of pardoning and compensating all gay men convicted under Paragraph 175.