Sex Crimes under the Wehrmacht

6. Homosexuality and Violations of Paragraph 175

CHAPTER SIX Homosexuality and Violations of Paragraph 175 Perhaps more than any other offense, the Wehrmacht’s handling of servicemen convicted for violating paragraph 175, the criminal code against homosexuality, demonstrates its concern for the recycling of usable human matériel and the maintenance of the Wehrgemeinschaft . Homosexual cases also illustrate the great variations in jurisprudence and sentencing practices that characterized the everyday reality of Wehrmachtjustiz. Close scrutiny of the case files also reveals the dominance of the Gerichtsherren in the military judicial process. Paragraph 175 After the Weimar Republic’s (relatively) liberal treatment of homosexuals , the Third Reich established new criteria for the prosecution of homosexuals.1 With the Röhm Putsch in 1934, homosexuals became public enemies, and Nazi leaders proclaimed the extermination of these “genetic contagions” (Volksseuche) a national priority.2 Hitler and Himmler classified gays along with criminals, “asocials,” and Jews as “deviant subhumans.” The führer and Reichsführer-ss vowed to eradicate these “cosmic lice.”3 Upon unification, Imperial Germany had incorporated the Prussian penal code against homosexuality as paragraph 175 into the Reich Criminal Code of 1871.4 From 1871 to 1935, the provision threatened punishment only for sodomy (widernatürliche Unzucht). In practice, the courts interpreted the law narrowly and considered as punishable only those acts that simulated heterosexual intercourse.5 Proving such activity in court proved to be exasperatingly difficult as far as Himmler and other fanatics were concerned. Therefore, on the heels of the Röhm Putsch, the regime modified the provisions in 1935 to both facilitate and broaden the scope of prosecution. Struck from paragraph 175, “sodomy” was replaced simply with the word “indecency” (Unzucht).6 Henceforth, all “indecent activities” (unz üchtige Treiben), not just coitus, became punishable.7 The modified and amended penal code “encompassed any form of ‘criminal inde- 104 PA R T I I cency’ between men,” as well as any personal conduct that offended “public morality” or aroused “sexual desires in oneself or strangers .”8 Henceforth, even enticing glances between men could lead to prosecution under paragraph 175.9 In fact, according to precedent established in 1935, any act violating the “people’s healthy sense of morality ” could be punished, effectively nullifying the long established principle of “no law, no crime.”10 Paragraphs 175 and 175a contained the following provisions: Paragraph 175 1. A male who indulges in criminally indecent activity with another male or who allows himself to participate in such activity will be punished with imprisonment. 2. If one of the participants is under the age of twenty-one and if the offense has not been grave, the court may dispense with the sentence of imprisonment. Paragraph 175a A term of penal servitude up to ten years, or if mitigating circumstances can be established, a term of imprisonment of no less than three months will be imposed upon: 1. Any male who by force or threat of violence to life and limb compels another man to indulge in criminally indecent activities or allows himself to be used for such activities; 2. Any male who forces another male to indulge with him in criminally indecent activities by using the subordinate position of the other man, whether it be at work or elsewhere, or who allows himself to participate in such activities; 3. Any male over twenty-one years who seduces a male person under twenty-one years to participate in criminally indecent activities or anyone under twenty-one who allows himself to be used for such activities. 4. Any male who indulges professionally and for profit in criminally indecent activities with other males or allows himself to be used for such activities or who offers himself for the same.11 Heinrich Himmler, the driving force behind the persecution of homosexuals , pursued what he considered to be deviant sexuality to H O M O S E X U A L I T Y A N D V I O L AT I O N S O F PA R A G R A P H 175 105 the point of obsession, and his antipathy toward homosexuals went far beyond traditional homophobia. Demonstrating the link that he perceived between homosexuality, genetic health, and population policy, Himmler established in 1936 the Reich Central Security Office for Combating Homosexuality and Abortion.12 Although Burkhard Jellonnek has effectively destroyed the legend of a Reich-wide uniform homosexual holocaust, Himmler and...