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March 7th
2004

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2.4 - Nazi Re-writing of Paragraph 175

The Nazis took power in January 1933 on a platform of law and order, "traditional values," and an ideology of racial purity that included virulent antisemitism and the persecution of unwanted social groups. Among its first steps to create the "New Order," the regime shut down homosexual gathering places, organizations, and publications in a broad attack on "public indecency." The Nazi assault on homosexuality had begun.

As the regime consolidated power and centralized state authority, the instruments of persecution emerged. Propaganda in the wake of a major political crisis in mid-1934 linked homosexuality to subversion, even treason, thereby encouraging public intolerance. In 1935, Nazi authorities rewrote criminal law Paragraph 175, and subsequent court interpretation radically expanded the range of punishable "indecencies between men." Enforcement of Paragraph 175 fell to the Criminal Police and the Gestapo, unified by 1936 under the SS and its leader, Reichsführer-SS Heinrich Himmler.

The nation's police forces gained extraordinary authority to employ surveillance on suspect individuals and to seize and detain "enemies of the state." During the 30 months from early 1937 to mid-1939, German police arrested almost 78,000 men under Paragraph 175, one-third of whom were convicted and sentenced to prison. Hundreds more were interned in concentration camps outside the legal process. All were subjected to brutal mistreatment at the hands of police, interrogators, and guards.

The state's initial steps to restore law and order focused on professional criminals and "habitual sex offenders." The second category included not only men with two convictions under Paragraph 175, but also men expected "with a high degree of probability" to violate that law. Regulations issued in February 1934 ordered police surveillance of these individuals and authorized restrictions on their activities.

The increasing police interest in the lives of homosexual men drove a few to emigrate where they could. The vast majority, however, began to conceal their homosexuality; many married. Others committed suicide.

The "New" Paragraph 175

Paragraph 175 had been part of German criminal code from time of the German Empire under Kaiser Wilhelm I. As part of a massive rewriting of the criminal code, Nazi jurists revised Paragraph 175. Issued on June 28, 1935, and put into effect on September 1, 1935, the revision emphasized the criminality of both men involved in "indecency."

The revised law opened the way to new judicial interpretations because criminalized homosexuality was no longer described as "unnatural" (though the term frequently appeared in police documents thereafter). Even before the new law went into effect, Nazi courts expanded the range of so-called indecent acts beyond the single offense prosecuted under the old law. By 1938, German courts ruled that any contact between men deemed to have sexual intent, even "simple looking" or "simple touching," could be grounds for arrest and conviction.

New language added as Paragraph 175a specifically imposed up to ten years' hard labor for "indecency" committed under coercion, with adolescents under the age of 21, and for male prostitution. In practice, however, individuals victimized by acts punishable under these new provisions could be - and were - prosecuted as criminals according to Paragraph 175. (The revised law left homosexuality between women unmentioned.)

Paragraph 175

Reichgesetzblatt Teil 1, Jahrgang 1935, p. 841: Article 6 "Unzucht [indecency] zwischen Männer," §175 and 175a (28 June 1935).
United States Holocaust Memorial Museum #058

English translation by Warren Johannson and William Percy in "Homosexuals in Nazi Germany," Simon Wiesenthal Center Annual, Vol. 7 (1990).

Article 6

Indecency between Men

1. §175 of the Penal Code contains the following wording:

§175

A male who commits lewd and lascivious acts with another male or permits himself to be so abused for lewd and lascivious acts, shall be punished by imprisonment.
In a case of a participant under 21 years of age at the time of the commission of the act, the court may, in especially slight cases, refrain from punishment.

2. The following rule shall be added after §175 of the Penal Code as §175a:

§175a

Confinement in a penitentiary not to exceed ten years and, under extenuating circumstances, imprisonment for not less than three months shall be imposed:
  1. Upon a male who, with force or with threat of imminent danger to life and limb, compels another male to commit lewd and lascivious acts with him or compels the other party to submit to abuse for lewd and lascivious acts;
  2. Upon a male who, by abuse of a relationship of dependence upon him, in consequence of service, employment, or subordination, induces another male to commit lewd and lascivious acts with him or to submit to being abused for such acts;
  3. Upon a male who being over 21 years of age induces another male under 21 years of age to commit lewd and lascivious acts with him or to submit to being abused for such acts;
  4. Upon a male who professionally engages in lewd and lascivious acts with other men, or submits to such abuse by other men, or offers himself for lewd and lascivious acts with other men.
§175b

Lewd and lascivious acts contrary to nature between human beings and animals shall be punished by imprisonment; loss of civil rights may also be imposed.

Once Paragraph 175a was in effect, the annual number of convictions on charges of homosexuality leaped to about ten times the number in the pre-Nazi period. The law was so loosely formulated that it could be -- and was -- applied against heterosexuals whom the Nazis wanted to eliminate. The most notorious example of an individual convicted on trumped-up charges was General Werner von Fritsch, Army Chief of Staff; and the law was also used repeatedly against members of the Catholic clergy. But the law was undoubtedly used primarily against gay people, and the court system was aided in the witch-hunt by the entire German populace, which was encouraged to scrutinize the behaviour of neighbours and to denounce suspects to the Gestapo.

No one knows how many homosexual men were killed by the Nazis before and during the war. But let us look at some figures. First, on the home front. The number of homosexual men (non-military) convicted under Paragraph 175 and sent to prison were:

Year Number of convicted gay men
1933 853
1934 948
1935 2,106
1936 5,321
1937 8,271
1938 8,562
1939 7,614
1940 3,773
1941 3,739
1942 3,963
1943 2,218
1944 2,000 (est.)
1945 data not available
Total 49,368
The Nazis passed other laws that targeted sex offenders.

In 1933, they enacted the Law Against Dangerous Habitual Criminals and Measures for Protection and Recovery. This law gave German judges the power to order compulsory castrations in cases involving rape, defilement, illicit sex acts with children (Paragraph 176), coercion to commit sex offenses (paragraph 177), the committing of indecent acts in public including homosexual acts (paragraph 183), murder or manslaughter of a victim (paragraphs 223-226), if they were committed to arouse or gratify the sex drive, or homosexual acts with boys under 14.

The Amendment to the Law for the Prevention of Offspring with Hereditary Diseases dated June 26, 1935, allowed castration indicated by reason of crime for men convicted under paragraph 175 if the men consented. These new laws defined homosexuals as "asocials" who were a threat to the Reich and the moral purity of Germany. The punishment for "chronic homosexuals" was incarceration in a concentration camp. A May 20, 1939 memo from Himmler allows concentration camp prisoners to be blackmailed into castration.

While in 1934 766 males were convicted and imprisoned, in 1936 the figure exceeded 4,000, and in 1938 8,000. Moreover, from 1937 onwards many of those involved were sent to concentration camps after they had served their "regular" prison sentence.

To this - a total of nearly 50,000 - should be added a significant proportion of the 56,000 people subjected to "sterilizaton", i.e. castration.

These very large numbers of convicted homosexual civilians suggest a much higher figure for the front lines - where most of the men were - and the concentration camps (for which there are few records).

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