Vom Verbot zur Gleichberechtigung - Hirschfeld-Eddy-Stiftung

03 | Paragraph 175 of the Penal Code: “Abolished” after 123 Years 59
tongues touched were subject to prosecution, later a “lascivious intent” was enough for
someone to be found guilty. By 1945, there had been approx. 50,000 convictions. Thousands
of gay men were dragged off to concentration camps. Only a minority survived
the terror in the camps. 1
The continuity of persecution after 1945
After 1949, the Federal Government neither continued the reform discussion initiated
during the Weimar Republic nor its comparatively lenient police practices in relation
to homosexuals. During the Adenauer Era, the young Federal Government consciously
sought to heal itself of the horrors of the National Socialist Era by adhering to Christian
morality. This was hardly a positive development for homosexuals. They continued to
be seen as a danger for the family, society and the state. Unlike in the GDR, Paragraph
175 of the Penal Code remained in force unaltered, i.e., in the version drafted by the National
Socialists, until 1969; 2 and the law was applied without mercy. The courts of the
Federal Republic of Germany convicted another roughly 50,000 men because of samesex
“fornication” during this period. Roughly the same number was also involved in preliminary
investigations by public prosecutors. The pressure of prosecution was enormous:
raids, pink lists, waves of criminal proceedings, and complete social ostracism. All
homosexuals had to live in fear of being discovered, had to be prepared to face criminalisation
and social ostracism at any time. In 1963, the religious philosopher and historian
Hans-Joachim Schoeps coined the bitter phrase, “For homosexuals, the Third Reich
is not over yet.” 3
Paragraph 175 was, of course, also subject to criticism. In 1951, a slight majority of the
members of the Deutsche Juristentag (German Lawyers Conference) came out in favour
of ending the criminalisation of homosexuality among adults. 4 During the same
year, however, the Federal Court of Justice decided that the National Socialist version of
Paragraph 175 conformed with the constitution and could also be applied in a demo-
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1 Regarding the individual periods in the history of persecution and emancipation, cf., for ex., the exhibition catalogue
Die Geschichte des § 175, Strafrecht gegen Homosexuelle. Ed. by Freunde eines schwulen Museums (Berlin)
and Emanzipation e.V. (Frankfurt am Main). Berlin 1990. | 2 Regarding the continued existence of Paragraph 175
after 1945 cf. Schäfer, Christian: “Widernatürliche Unzucht” (§§ 175, 175a, 175b, 182 a.F. StGB). Reformdiskussion und
Gesetzgebung seit 1945. Berlin 2006. Pp. 49ff. Schäfer’s dissertation provides a comprehensive description of the
legal discussion up to 1994 and is essential for anyone interested in Paragraph 175. | 3 Schoeps, Hans Joachim:
“Überlegungen zum Problem der Homosexualität”. In: Der homosexuelle Nächste. Ein Symposion. Hamburg 1963.
Pp. 74–114, p. 86. | 4 Schäfer, note 2, pp. 85f.