Paragraph 175 - Background

Background

In the second half of the 13th century the status of anal sex between men changed. Already certainly perceived as a sin, for the first time, legal acts were adopted that made it a crime. Almost everywhere in Europe, the act became punishable by death.

In 1532, Charles V, Holy Roman Emperor with 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 17th century. In the words of Paragraph 116 of that code:

The punishment for fornication that goes against nature. cxvj. When a human commits fornication with a beast, a man with a man, a woman with a woman, they have also forfeited life. And they should be, according to the common custom, banished by fire from life into death.

In 1794, Prussia introduced the Allgemeines Landrecht (or Prussian Code), a major reform of laws that replaced the death penalty for this offense with a term of imprisonment. Paragraph 143 of that Code says:

Unnatural fornication, whether between persons of the male sex or of humans with beasts, is punished with imprisonment of six months to four years, with the further punishment of a prompt loss of civil rights.

Prussia was ahead of its time in this matter and was considered to be acting in the spirit of the Enlightenment, but they would soon be overtaken. In France, the Revolutionary Penal Code of 1791 punished acts of this nature only when someone's rights were injured (i.e., in the case of a non-consensual act), which had the effect of the complete legalization of homosexuality.

In the course of his conquests, Napoleon exported the French Penal Code beyond France into a sequence of other states such as the Netherlands. Bavaria, too, adopted the French model and in 1813 removed from its lawbooks all prohibitions of consensual sexual acts.

In view of these developments, 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, however, stated in their appraisal of March 24, 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.

Nevertheless, the draft penal law submitted by Bismarck in 1870 to the North German Confederation retained the relevant Prussian penal provisions, justifying this out of concern for "public opinion":

Even though one can justify the omission of these penal provisions from the standpoint of Medicine as well as on grounds taken from certain theories of criminal law – the public's sense of justice (das Rechtsbewußtsein im Volke) views these acts not merely as vices but as crimes ".