Introduction
In the spring of 1958, in Passau Germany, a group of officials gathered to deliberate and discuss homosexuality, the laws of West Germany and the reformation of several provisions. These individuals were members of a commission that was appointed by the West German Ministry of Justice. Their main purpose was to offer legal advice on a proposed reform of criminal code. Their deliberation had reached a point where it focused on draft law provisions that applied to homosexuality. The reform proposal specifically referenced statute number 363, or as more commonly known Paragraph 175. Paragraph 175 was the provision that had made male homosexuality illegal since it became a part of German law in 1871.
Much of the information in this paper will encompass how lawyers, politicians, scientist and even how society viewed homosexual men, not how homosexual men perceived themselves within society. The continuous prosecution of homosexuality in West Germany lasted until 1969 and this placed limits on the activity of homosexual men. They could not represent their own interests or ideas without fear of retribution and thus, they were left out of the discussion regarding their own legal rights. This paper will focus on the reform of Paragraph 175 that took place in the 1950s, and in the 1960s. It will analyze the debates of reform regarding Paragraph 175 that have occurred over the years during the post-war period in West Germany and it will examine how politicians and policymakers defined West German private acts, as well as public behavior.
Early Reform
At the end of World War II, West German cities witnessed a revitalization of homosexual subculture. Whether it be an increased number of bars opening that catered to homosexual men or an increased amount of public displays of homosexual culture, people were beginning to see these times as forthcoming with drastic amounts of change. However, Paragraph 175 was still in effect as a provision that held penalties for those who engaged in homosexual acts, whether they be public or private. Many courts upheld this law and police roundups of homosexual men were still occurring in 1951. This made it clear to the West German homosexual population that sexual activity between adult men was still considered a crime under the eyes of the law despite the societal changes that had taken place.
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As Clayton Whisnant put it, in cities such as Hamburg, an extensive network of homosexual bars and clubs reemerged after the war and remained until the late 1950s. Although this period saw the revitalization of homosexual subculture, the rate of convictions for violations of Paragraph 175 rose by 44 percent in the 1950s. In the 1960s, the number of those who were convicted under Paragraph 175 continued to rise at rapid speed. It is quite possible to also consider that some of those who were arrested in the post war period for violations of Paragraph 175, may have been some of the same individuals who were prosecuted under the law during the reign of National Socialism.
Until 1957, there had been little progress for reforming Paragraph 175, but many people continued to lobby for revision. The most important call for revision focused on the decriminalization of sex acts between mutually consenting adult men. However, reformers also favored protections that focused on maintaining the protection of young men against the “immorality” of homosexuality. At this point in time, people were worried that what may be decriminalized for the private sphere, may reach the public sphere, therefore, tempting more of the population to join into homosexual culture.
A specific case of these opinions can be seen in Heinrich Ackermann, a jurist from Hamburg who supported the decriminalization of sex between consenting adult males. However, when he was addressed in 1951 at the German National Lawyers’ meeting, he stated that “homosexuality and its practice violated the sense of shame and morality of the overwhelming majority of those in the German community of law”. Particularly, Ackermann, and people like him, were more concerned with West German youth and how homosexuality would influence and manipulate them. Youth were considered to be particularly at risk of succumbing to homosexuality’s “immorality” due to their “psyches [being] easily influenced”. Thus, even advocates for the reform of Paragraph 175 wanted to ensure that what might be permissible in private spaces not invade the public spheres of West Germany.
With Ackermann’s opinions also being the opinion of the majority, the Criminal Code Commission proceeded to deliberate the issues and the future of Paragraph 175. When first convening, the group was tasked with examining the very idea of crime, punishment and retributive justice for West German law. The commission’s job was then to advise the Chancellor and the Ministry of Justice about the formation and changes to all new laws.
As deliberation continued, all commission members decided that the prosecution of homosexual males had gone too far. Although one issue that they did encounter was that no one stood in agreement on how to make up for past wrong-doings. They judged homosexual activity to be “immoral”, but the commission was split in half between reform resisters and individuals who favored the suspension of penalties against homosexual activity. Debate was continued that encompassed protections for the youth of West Germany, especially young adult males. After voting, the commission decided to maintain provisions that penalized men eighteen years or older who engaged in “[homosexual] immorality” with a man younger than twenty-one.
At this point in time, commission members were still worried that the decriminalization of homosexual acts between men would allow homosexual subculture to spread uncontrollably, therefore, it was banned in the public sphere. Even though acts within private may remain private, many members of the commission thought that public displays of homosexuality would reduce the population’s sense of decency and morality. Additionally, Justice Ministry officials were worried that with a lack of criminal penalties for homosexuality the “[homosexual] propaganda and activity in public” would put male youth at risk.
This continues to provide evidence to display that reform of criminal penalties regarding homosexual acts was very limited since many believed that homosexuality was not inherent within different individuals. Many considered the idea of being homosexual to mean that males fell victim to homosexual desires that surpassed the boundaries of heterosexuality. These ideas and opinions possibly stem from concepts from earlier within the century, when it was thought that maintaining the “purity and health of sexual life” was the most important aspect to the “survival of the Volk”.
Enlightenment in West Germany
In 1962, as national elections faced West Germany’s parliament, the parliament delayed action on Paragraph 175. At this point in time, debate over the draft law carried on for another seven years and by the end of the 1960s the West German parliament was ready to reject the previous proposals of the Justice Ministry. West Germany had become more progressive and revisions of criminal penalties for homosexuality were a part of larger political and social reform.
During this period the Social Democratic Party had come into power and by 1969 held the majority within the parliament. Since the 1890s, the Social Democratic Party had supported the suspension of criminal penalties that prohibited homosexual activity. The government now had lesser influence from organized Christianity at the national level. By the later half of the 1960s, neither the Catholic nor the Protestant Church had direct access to the Chancellor’s office and also, West Germany had experienced increased prosperity. This convinced many that West Germany was stable enough to not be affected by what homosexual men did in the privacy of their own homes.
With the pressure of maintaining the vitality of the Volk lessened, homosexual men were no longer viewed as undermining the vitality of Germany. This ultimately influenced legal discourse surrounding reform. An example of this can be seen in Nuremburg, at the 1968 national meeting of German lawyers, where reform and revision of criminal penalties against homosexuality were discussed moreover. Many people there denounced the maintenance of Paragraph 175. By the ending of the national meeting, those in attendance concluded that there was a “fresh breeze of Enlightenment” that inspired the change regarding the outdated criminal code.
On the topic of sexuality, many at Nuremburg argued that the state should only intervene in cases that involved sexual force, such as rape, or abuse of minors. The state’s job was to protect society from harm, not dictate what was moral or immoral about the actions between two consenting adults, regardless of gender. Citizens did not need government instructions on how to judge the morality of their sexual practices, what they needed was a government that supported their right to judge for themselves.
Another interesting aspect about Nuremburg was that many who detested the criminal penalties against homosexuality openly stated their participation in the Christian church and, since the early 1960s, the Protestant Church demanded for an end to the criminalization of sexual activity between consenting adult men. This serves to illustrate the point that “enlightened” Germans could also be Christian, even though not all German Christians were as accepting as others. Additionally, by the late 1960s, other nations had decriminalized homosexuality and they illustrated that allowing homosexuality would not result in a decline of civilization.
Furthermore, reformers used another tool to promote their agenda, and it was scientific research that illustrated the unalterable condition of homosexuality. This was used as a platform to show that religious beliefs may be able to shape morals, but science was the only thing that should shape legal guidelines. Some specific research that was used to encourage reform were studies that stated no more than 5 percent of the male population participated in homosexual acts. This research concluded by stating that there was no correlation between the increase of homosexual activity in countries where it was no longer criminalized.
In 1969, the final vote for reform of Paragraph 175 on themes centered on homosexuality occurred. In the Bundestag there was an overwhelming majority of votes that favored the decriminalization of consensual sex between men, while also maintaining provisions that protected adolescents from endangerment. At this point in time, West Germany had finally liberated itself from the calamity of National Socialism, its reign of terror that stifled a large portion of the population, and its goal of eradicating those who were deemed “unfit” to reproduce for the survival of the Volk.
The Limits of Reform
Although the decriminalization of homosexuality in 1969 was a major victory for homosexuals in West Germany, it did little to alter the public perspective and acceptance of homosexuality. The liberation movement had failed to propel West German citizens into accepting homosexual acts or identities. Most of the people seeking reform of Paragraph 175 noted that decriminalizing sexual relations between men was not the same as promoting social acceptance. The decriminalization of homosexuality, however, was an example to display the limits that should be set for the government’s ability to mold society’s behavior. As mentioned before, the goal was to protect the private sphere, not to endorse sexual liberation. Advocates held the position that “immorality” should not be defined by politics, nor should it warrant criminal prosecution if there was no intentional harm being done. It was up to society to determine whether or not homosexuality was right or wrong, not the court system.
Many reformers reassured those who opposed reform by making them aware that West German citizens would not engage in “shameful acts” due to homosexuality’s decriminalization. The population of West Germany were not chained dogs, that were tempted by lustful desires. In fact, many reformers thought that homosexuality would remain discreet amongst the population due to the high levels of social distaste towards homosexuality amongst the public. Additionally, the transition from an emphasis on religion to science helped to encourage reform since science illustrated the fact that homosexuality was not a choice that could be altered.
While the acceptance of homosexuality made major strides toward change in the legal arena, homosexuality was still fighting battles for acceptance in the social and or public arena. The traditional, West German roles of masculinity were still being juxtaposed against the “corrupt” homosexual. This occurred especially within the religious sector of West Germany. Many considered religion as a tool that could still be weaponized against homosexuality. The government could no longer determine and judge people for their immoral behaviors, however, God still could. The idea here was that sexual outsiders would also remain political outsiders as defined by the liberal social contract. Perhaps anxiety surrounding societal masculine roles made it even more essential for the border between heterosexuality and homosexuality to be policed.
Overall, any political or social movements to further the legal rights of homosexuals in the 1950s and 1960s were subdued by anxiety surrounding potential criminal prosecution under the same laws that had repressed homosexuality. By the end of the 1960s, West German citizens were ready to embrace a modernity that created limits for the government control and regulation of sexuality. The reform of Paragraph 175 that was pushed by reformers indicated that West Germany was ready to participate in democratic political governance.
Modernity meant acknowledging and accepting a “private sphere of intimacy” where the government did not play a role or mandate the actions that could or could not occur. Essentially, politics told homosexual men that they could come out of the closet, but they could not stray far beyond their own bedrooms. Homosexual liberation challenged the concepts of the division between the public and private sector. It demanded that homosexual men be free to live their lives, in any fashion they chose while society increased its tolerance to include different practices of life, and those who chose to march to the beat of a different drum.
