Sex Crimes under the Wehrmacht

10. Intoxication and Diminished Responsibility

CHAPTER TEN Intoxication and Diminished Responsibility According to Stephen Fritz, German soldiers endured the cold Russian winters only by consuming alcohol.1 Indeed, the heavy use of intoxicating beverages apparently was a widespread problem for the Wehrmacht and was not limited to the eastern front. A high percentage of the defendants in the case files had consumed alcohol before their crimes. Nearly 30 percent of the individuals convicted for sexual assault or homosexual activity, for example, had been drinking at the time of their infractions. Section 51 of the Reich Criminal Code codified the principle of diminished responsibility and provided parameters for the punishment of crimes committed by mentally impaired individuals. Section 330a, which was inserted into the criminal code in 1934 as an adjunct to section 51, established guidelines for the punishment of individuals committing crimes in a state of complete intoxication, and therefore under diminished responsibility as defined by section 51. The provision established the maximum punishment for any crime, including murder, at two years’ (and later five years’) imprisonment, thereby excluding penal servitude. As initially promulgated in 1934, section 330a read in part as follows : Complete Inebriation (Volltrunkenheit) Whoever intentionally or negligently puts oneself in a state of intoxication that precludes the capability to reason (Section 51, number 1) through the consumption of alcoholic beverages or other intoxicating means is punished up to two years imprisonment or fined if in this condition he commits an act threatened with punishment.2 The criminal codes threatened homosexual activity, rape, child molestation , and incest with penal servitude. Therefore, soldiers who were convicted for these offenses, but who were granted diminished responsibility and punished according to section 330a, more often than not received far more moderate punishments than they would I N T O X I C AT I O N A N D D I M I N I S H E D R E S P O N S I B I L I T Y 207 have under the normal punishment parameters. The courts, however, granted diminished responsibility reservedly. Among the more than eighty individuals in the case files who consumed alcohol before committing their crimes, only nineteen received the protection of section 330a, primarily for rape crimes and violations of paragraph 175. A comparison of fifteen case files for nonsexual offenses in which the courts granted diminished responsibility shows that with nonsexual offenses, as with sexual offenses, individuals had to be very intoxicated in order to receive the provision’s protection.3 In fact, when hearing cases of sexual offenses, the courts very often refused the application of 330a, despite considerable evidence of extremely high levels of intoxication, such as falling asleep or passing out at the scene of the crime after committing a sexual assault.4 Only on rare occasions did the courts not require extensive evidence before concluding that an individual had been impaired beyond the capacity to reason. On the other hand, the courts appear to have been inconsistent in their perception of what constituted complete inebriation and, on occasion, accepted the testimony of a single witness as suf- ficient proof that an individual had been completely inebriated. Despite the military judiciary’s preoccupation with practical military considerations, no evidence suggests that “good” soldiers received the protection of section 330a more often than “bad” soldiers. Nevertheless, as with the other categories of sex offenses, individuals’ service records could be crucial to their fates during the sentencing and reintegration phases. The case files also reflect and reinforce many other previously encountered trends. For example, the military judicial authorities prosecuted and punished German soldiers for alcohol-related crimes against eastern inhabitants.5 The case files also reflect the high reintegration rate for homosexual offenders, even those with previous convictions for violations of paragraph 175.6 Operations frequently took precedence over justice, with at least three offenders released early from detention specifically for that reason.7 Two issues not yet considered make intoxication cases particularly important to this discussion. The first concerns the authoritarian structure of the Wehrgemeinschaft. A high percentage of the defendants were noncommissioned officers, and upon conviction these 208 PA R T I I individuals were stripped of their rank and reenrolled at the lowest conscripted grade. This phenomenon is not unique to those punished under section 330a, but Gerichtsherren and the courts subordinated to them considered the over-consumption of alcohol as a grievous violation...