Editing Paragraph 175 (section)

==Historical overview==
Paragraph 175 was adopted in 1871, shortly after Germany was unified. Beginning in the 1890s, sexual reformers fought against the "disgraceful paragraph",<ref>For this expression ("disgraceful paragraph") see, among others, [[Kurt Tucholsky]], "Röhm", in ''The Weimar Republic Sourcebook'' University of California Press, 1994, {{ISBN|0-520-06775-4}}, p.&nbsp;714: "We oppose the disgraceful paragraph 175 wherever we can; therefore, we may not join voices with the chorus that would condemn a man because he is a homosexual." The essay was originally published (in German) in ''Die Weltbühne'', No. 17 (April 26, 1932) 641.</ref> and soon won the support of [[August Bebel]], head of the [[Social Democratic Party of Germany|Social Democratic Party]] (SPD); however, a petition in the [[Reichstag (German Empire)|Reichstag]] to abolish Paragraph 175 floundered in 1898.<ref name="Magnus">{{cite book|title=Magnus Hirschfeld and the Quest for Sexual Freedom|author=E. Mancini|year=2010|publisher=Springer |isbn=978-0230114395}}</ref> In 1907, a Reichstag Committee decided to broaden the paragraph to make lesbian sexual acts punishable as well, but debates about how to define female sexuality meant the proposal languished and was abandoned.<ref>{{cite book|title=Desiring Emancipation: New Women and Homosexuality in Germany, 1890–1933|author=Marti M. Lybeck|pages=110–115|isbn=978-1438452210|year=2014|publisher=SUNY Press }}</ref> In 1929, another Reichstag Committee decided to repeal Paragraph 175 with the votes of the Social Democrats, the [[Communist Party of Germany|Communist Party]] (KPD) and the [[German Democratic Party]] (DDP); however, the rise of the [[National Socialist German Workers Party|Nazi Party]] prevented the implementation of the repeal.<ref name="Magnus"/> Although modified at various times, the paragraph remained part of German law until 1994.<ref name="Magnus"/>

In 1935, the Nazis broadened the law so that the courts could pursue any "lewd act" whatsoever, even one involving no physical contact, such as [[masturbation|masturbating]] next to each other.<ref name="Clayton">{{cite book|title=Male Homosexuality in West Germany: Between Persecution and Freedom, 1945-69|page=29|year=2012|author=Clayton J. Whisnant}}</ref> Convictions multiplied by a factor of ten to over 8,000 per year by 1937.<ref name="stats">"Statistisches Reichsamt", Jürgen Baumann: ''Paragraph 175'', Luchterhand, Darmstadt 1968, collected in: Hans-Georg Stümke, Rudi Finkler: ''Rosa Winkel, rosa Listen'', Rowohlt TB-V., Juli 1985, {{ISBN|3-499-14827-7}}, S. 262.</ref> Furthermore, the [[Gestapo]] could transport suspected offenders to [[Nazi concentration camps|concentration camp]]s without any legal justification at all (even if they had been acquitted or already served their sentence in jail). Thus, over 10,000 homosexual men were forced into concentration camps, where they were identified by the [[pink triangle]]. The majority of them died there.<ref name="Encyclopedia">{{cite book|title=We are Everywhere: A Historical Sourcebook of Gay and Lesbian Politics|author=Mark Blasius, Shane Phelan|page=134|year=1997|publisher=Psychology Press |isbn=0415908590}}</ref>

While the Nazi persecution of homosexuals is reasonably well known today, far less attention has been given to the continuation of this persecution in post-war Germany.<ref name="Clayton"/> In 1945, after the concentration camps were liberated, some homosexual prisoners were recalled to custody to serve out their two-year sentence under Paragraph 175.<ref>{{cite web |last1=Taffet |first1=David |title=Pink triangle: Even after World War II, gay victims of Nazis continued to be persecuted |date=20 January 2011 |url=https://dallasvoice.com/pink-triangle-wwii-gay-victims-nazis-continued-persecuted/ |publisher=Dallas Voice |access-date=3 June 2021 |archive-date=3 June 2021 |archive-url=https://web.archive.org/web/20210603011754/https://dallasvoice.com/pink-triangle-wwii-gay-victims-nazis-continued-persecuted/ |url-status=live }}</ref> In 1950, East Germany abolished Nazi amendments to Paragraph 175, whereas West Germany kept them and even had them confirmed by its [[Federal Constitutional Court of Germany|Constitutional Court]]. About 100,000 men were implicated in legal proceedings from 1945 to 1969, and about 50,000 were convicted.<ref name="Clayton"/> Some individuals accused under Paragraph 175 committed suicide. In 1969, the government eased Paragraph 175 by providing for an [[age of consent]] of 21.<ref name=Tipton>{{cite book| url=https://books.google.com/books?id=8MCXQlcZNL8C&pg=PA584 |title=A History of Modern Germany Since 1815 |first=Frank B. |last=Tipton |publisher=University of California Press |year=2003 |page=584 |isbn=978-0-520-24049-0}}</ref> The age of consent was lowered to 18 in 1973, and finally, in 1994, the paragraph was repealed and the age of consent lowered to 16, the same that is in force for heterosexual acts.<ref name=Tipton/> East Germany had already reformed its more lenient version of the paragraph in 1968, and repealed it in 1988.<ref name=Tipton/>
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==Texts of the various versions of Paragraph 175==
===Version of May 15, 1871===
<blockquote>''§&nbsp;175 Unnatural fornication''

Unnatural fornication, whether between persons of the male sex or of humans with beasts, is to be punished by imprisonment; a sentence of loss of civil rights may also be passed.</blockquote>

===Version of June 28, 1935===
In the statute of 1935 (and that of 1969), there is a recurring phrase with minor variations: in its first appearance it is ''"...mit einem anderen Mann Unzucht treibt oder sich von ihm zur Unzucht mißbrauchen läßt"''. The connotations of this are difficult to render into English for two reasons:

# English has no concise, non-obscene verbal phrase equivalent to ''Unzucht treiben'': in a sexual context, ''Unzucht treiben'' specifically suggests a person doing something ''to'' another.
# The 1935 statute removed the previous qualifier ''widernatürlich'' ("against nature"). In the 1871 statute, in combination with ''widernatürlich'', ''Unzucht'' clearly meant [[anal sex]]. However, ''Unzucht'' without the qualifier could be interpreted in a much broader sense simply as "lewdness", leading to the possibility of punishment for acts as mild as kissing, fondling, or mutual masturbation that previously would not have been considered criminal. This was not merely an aberration of the Nazi era: the courts in the Federal Republic (West Germany) understood the term similarly.

Hence, a relatively close rendering of the recurring phrase would be "commits lewdness (as the active partner) with another man or allows such an abuse to be done to him"; the translation below opts for a slightly less awkward "engages as the active or passive partner in lewdness with another man".

<blockquote>''§&nbsp;175 Lewdness between men''

:I. A man who engages as the active or passive partner in lewdness with another man is to be punished by imprisonment.
:II. With an involved party who at the time of the act had not yet reached the age of twenty-one years, the Court can refrain from punishment in mild cases.

''§&nbsp;175a Severe lewdness (''Schwere Unzucht'')''

A punishment of up to ten years in the penitentiary, and even with mitigating circumstances no less than three months imprisonment for:
:1. a man, who by force or by threat of harm to life and limb forces another man to engage in such an act as either the active or passive partner;
:2. a man, who by abusing a dependency founded in a service-, work-, or employment-based relationship coerces another man into engaging in such an act as either the active or passive partner;
:3. a man over twenty-one years old who entices a male under twenty-one years old to engage in such an act as either the active or passive partner;
:4. a man who professionally offers himself for such an act as either the active or passive partner.

''§&nbsp;175b Bestiality''

Unnatural fornication of a man with a beast is to be punished by imprisonment; a sentence of loss of civil rights may also be passed.</blockquote>

The German-language title of §&nbsp;175b is ''"Sodomie"'', the modern German-language equivalent of "[[zoophilia|bestiality]]". In modern German, ''Sodomie'' does not carry the meaning [[anal intercourse]] at all. The now-dominant English-language meaning of the word "[[sodomy]]" has been lost during the past centuries and nowadays is completely unknown to a native speaker of German. ''(See German-language article [[:de:Sodomie|Sodomie]].)''

===Version of June 25, 1969 (West Germany)===
<blockquote>''§&nbsp;175 Fornication between men''

(1) Imprisonment of up to five years shall be the punishment for:
:1. a man over eighteen years old who engages as the active or passive partner in lewdness with another man under the age of twenty-one;
:2. a man, who by abusing a dependency founded in a service-, work-, or employment-based relationship coerces another man into engaging in such an act as either the active or passive partner;
:3. a man who professionally offers himself for such an act as either the active or passive partner.
(2) In the case of paragraph 1 Number 2 the ''attempt'' is punishable.<br>
(3) With an involved party who at the time of the act had not yet reached the age of twenty-one years, the Court can refrain from punishment.
<br>
§&nbsp;175b voided.</blockquote>

===Version of November 23, 1973 (West Germany)===
Besides the reduction of the age of consent, the 1973 amendment to the statute changes the wording. In place of ''Unzucht'', it refers to ''sexuelle Handlungen'' ("sexual acts"). The language, although much milder in its connotations, still carries an echo of the previous language about active and passive partners: ''"sexuelle Handlungen ... vornimmt oder ... an sich vornehmen läßt"'' ("commits sexual acts or allows them to be committed"). It also, by its vagueness, is almost as broad as the wording in the 1935 statute.

<blockquote>''§&nbsp;175 Homosexual Acts''

(1) A man over eighteen years old, who commits sexual acts with a man under eighteen years or allows a man under eighteen years to commit such acts with him, will be punished with imprisonment of up to five years.

(2) The Court can refrain from punishment according to this section if
:1. the person who committed the act was at the time of the act less than twenty-one years old or
:2. taking into consideration the conduct of the victim, the wrong of the act is small. "bei Berücksichtigung des Verhaltens desjenigen, gegen den die Tat sich richtet, das Unrecht der Tat gering ist."</blockquote>

===Version of March 10, 1994===
<blockquote>
''§&nbsp;175 Homosexual Acts'' voided
</blockquote>
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