Journal of the History of Sexuality 11.1 and 2 (2002) 131-163
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Telling Sexual Stories in the Nazi Courts of Law:
Race Defilement in Germany, 1933 to 1945
In the nineteenth-century imagination, miscegenation with "non-European" races, particularly Jews and blacks, who were deemed figures of pathological and deviant sexuality, was posited as a key source of the physical degeneration of the "European" individual, race, and nation. By the 1920s in Germany, even some progressive adherents of the new theories of eugenics had adopted similar notions, arguing that miscegenation led to a form of "species alienation" that caused the individual and nation to lose "life force" and biological fertility. Such concerns about intermarriage and miscegenation were to become a central ideological obsession among National Socialists, who even before the demise of the Weimar Republic began to issue calls for measures to prevent the sexual contamination of Aryan women and the birth of "mixed race" offspring. Indeed, fulminations against "race defilement" and the sullying of "Aryan maidens" featured prominently in Hitler's tract, Mein Kampf, and numerous other Nazi ideologists joined him in demanding an end to the mingling of races. 1 Thus, in their 1931 [End Page 131] annual convention, the organization of National Socialist physicians called for a prohibition on marriage between Jews and non-Jews. Once in power, Nazi Party members immediately began to appeal to the new regime to enact legislation criminalizing relations between "German" women and Jews, suggesting that "attempted contact should be punished by stripping the woman of her German citizenship and turning her over to the work camp, and by sterilization in cases of actual physical contact. The German Volk will survive only if it immediately undertakes measures to remain racially pure in spirit and body." 2
Two years later, at the 1935 Nuremberg party rally, the regime announced legislation that forbade "mixed marriages" and extramarital relationships between "full Jews" and persons of "German or related blood." Formally titled the Law for the Protection of German Blood and Honor, the Nuremberg Laws were immediately heralded as a fundamental precept of the new Germany. Prison sentences under the law ranged from one day to fifteen years, although in the law's official formulation only men were liable for prosecution. (Women, both Aryan and Jewish, were not liable for criminal prosecution and could be charged only as witnesses in race-defilement proceedings.) Over the course of the next decade, several thousand Germans were tried for violations of the Nuremberg Laws. 3 [End Page 132] For every individual brought to trial for the crime of race defilement (Rassenschande), scores of others were investigated but not charged. As both a racial and sexual crime, race defilement loomed large in the ideological and popular imagination over the remaining ten years of the Nazi regime. Sexuality, the site where private and public realms of politics, morality, and social order converged, in turn became a critical arena for the deployment of the regime's racial ideology and a focus of particularly intense regulation and control.
In the past several decades, an influential stream of scholarship has laid claim to the notion that the Nazi era cannot be understood purely as an aberration in modern history but needs to be interpreted within the framework of a larger German and European trajectory. However, this has not been the case for the historiography of law in National Socialist Germany, which remains largely wedded to traditional methodological and theoretical approaches. Though scholars have pointed to elements of continuity with law in Wilhelmine and Weimar Germany, and a few have made glancing comparisons to the legal systems of other authoritarian or totalitarian regimes, the law under National Socialism is typically regarded as having constituted a complete break from modern legal norms and standards. 4 Given the undeniable brutality of the law under National Socialism and its enthusiastic embrace of a racially driven framework for judicial decisions, it is not surprising that historians have tended to regard Nazi law solely as...