Günter Grau. Journal of Homosexuality. Volume 37, Issue 4. 1999.
On October 2, 1990, the German Democratic Republic (GDR) ceased to exist. With this event a chapter of German post war history was drawn to an end and, at the same time, the opportunity arose to take stock of the past forty years of modern history. Since that time many accounts have been drawn up. Noticeable, however, is that the critical analysis of publicists, theoreticians and social scientists have all but ignored the policy of the Sozialistische Einheitspartei Deutschlands (SED) toward homosexual women and men. If they have been thought worthy of mention, then this has only been in regard to the fact that Paragraph 175—the paragraph in the German Penal Code punishing homosexuality—was repealed in the GDR as early as 1968. This formal judicial advantage over the Federal Republic of Germany (FRG) was—and is still—considered as evidence that, in the so-called homosexual question, the SED had followed a policy that was directed toward liberalization from the start.
Such an interpretation is shortsighted. It disregards the fact that the history of homosexual men and women in the GDR cannot be separated from the history of the GDR itself. Just as setbacks and breaks marked the history of the GDR, so was the history of lesbians and gays in the GDR the result of the contradictory positions which the SED adopted toward homosexuals and homosexuality during its forty years as the governing party. For many years the topic was taboo, and the very existence of homosexual men and women in the ‘‘workers and farmers state’’ was firmly denied. Even in the liberalized phase after 1985, the political organizations of homosexual men and women were illegal and publication of gay and lesbian journals was not authorized.
It is not sufficient to explain this simply by the deepseated prejudices toward homosexuality and the homophobia which this nourished within the Party leadership. Policy was more complicated than this. To shed more light on the subject, it is helpful to investigate various aspects such as: the attitude of the SED toward the inhuman policies on homosexuality under the National Socialist regime; the effects on the SED of the repressive policies against homosexuals in the Soviet Union; the influence of the discussion on the penalization of homosexuals in the FRG; and the relationship of the SED to the traditional thinking of the workers’ movement in these matters.
The following text examines more closely the last point mentioned above with respect to the timeframe from the new start under antifascist conditions following the Second World War to the consolidation of the SED’s rule at the end of the 1960s.
Neglected Opportunities 1945-1951
Over three and a quarter years have passed since the end of the criminal Nazi regime, under which we also suffered especially severely. Liberated from the worst of the Nazi repression and persecution, we are, however, still waiting for the deletion of Paragraph 175 of the Penal code, which was recommended by the Reichstag Committee on Criminal Law in 1929 on the basis of a motion put forward by the Democrats, Social Democrats, Communists and Prof. Kahl, MP, from the German People’s Party. Instead, the Nazi version of Paragraph 175 from 1935 remains law. We further demand a reform of Paragraph 175a of the Criminal Code and the penalization of only those activities which are also punishable for people of different sexes … Despite the great political and economic difficulties, from which our poor fatherland suffers at present, we move that the public and the parliamentary Committees on Criminal Law tolerate no further delay, but immediately concern themselves with the question of legal reform. It is a matter of ending an injustice, which otherwise will continue to be perpetrated against us. (Mecklenburgisches Landeshauptarchiv. Landtag Mecklenburg 1946-1952 Nr. 144, not numbered)
This passage is taken from a motion proposed by the Member of the Saxon Regional Parliament, Curt Röbel, written in August 1948 and sent to all German regional governments, central administrations, provincial parliaments and parties. In his plea, Röbel expresses what the majority of homosexuals in the postwar years expected of a new democratic Germany: the elimination of disadvantages and discrimination by repealing the laws against homosexuals. Great expectations were placed in the SED which developed out of a unification of the two workers’ parties—the Kommunistische Partei Deutschlands (Communist Party of Germany, KPD) and the Sozialdemokratische Partei Deutschlands (Social Democratic Party of Germany, SPD). It was expected that they stand by the policies of the KPD and abolish the antihomosexual paragraphs.
The SED did not do so, although the formal conditions for such a reform were especially favourable in the postwar years. The legal position was unclear immediately after the end of the war. The Allied Control Council did suspend various Nazi-regulations in Decree No. 1, and Decree No. 11 declared all regulations which had been issued by the Nazis as invalid. The later decree, however, did not mention all paragraphs which were held to be considered and thus no specific reference was made to—among others—Paragraphs 175 and 175a.
The newly established institutions of justice began a critical review of the judicial situation, in light of recent pending cases of ‘‘unnatural sexual acts’’ as well as of applications for a revision of decisions made by Nazi judges from men condemned on the basis of Paragraphs 175 and 175a during the Nazi-period. This occurred in all the occupied zones of Germany.
It soon became obvious that in this matter the direction of the zones occupied by the Western Allies and that of the Soviet occupied zone would diverge. In the Western zones, judges presiding over appeals brought before the provincial courts as early as 1946 had no doubts as to the continued validity of the Nazi versions of Paragraphs 175 and 175a (Schulz, 1994, p. 10f). The situation was different in the provinces of the Soviet occupied zone where there was ‘‘no clear tendency’’ until 1949 (Weiß, 1949, p. 145).
On November 1, 1945, the provincial authorities of Thuringia declared the paragraph from before 1935 as the only valid version of paragraph 175. This paragraph, however, was not receiving special treatment. Rather, this change took place of a complete return to pre-1935 conditions for the entire Penal Code to be applied in Thuringia. The Thuringian authorities were taking a risk with this decision because they dared to review the validity of laws and make amendments to individual paragraphs before a basic position had been reached by the Allied Control Council.
The decision of the Thuringian authorities was ignored in other provinces of the Soviet occupied zone where the courts made contradictory judgments. In Saxony, Decree No. 3 on the new regulation of the judicial system (December 3, 1945) laid down that only those laws which were in force before January 30, 1933, were valid, and that laws and regulations issued later were only valid if they did not contain Nazi ideas. In Saxon-Anhalt, the provincial high court (Oberlandesgericht) in Halle passed down a judgment on July 25, 1947 assessing the 1935 versions of Paragraphs 175 and 175a as typically national socialist and thus invalid. Staffed by different judges, the provincial high court decided in a judgement on July 1, 1948 that the Nazi version of Paragraph 175 was valid (OLG Halle, 1949, p. 144). The Supreme Court (Kammergericht) in Berlin also handed down various decisions in 1946 and 1947 (Judgment of 30.101946-Ss96/46, of 23.10.1946-Ss108/46; of 7.5.1947- Ss242/47).
The German Central Administration for Justice (Deutsche Zentralverwaltung für Justiz)—usually called the German Justice Administration (Deutsche Justizverwaltung), the authority responsible for law and its application—overlooked the fact that the courts in the provinces of the Soviet occupied zone were applying Paragraphs 175 and 175a differently from each other and thus passing divergent judgments.
Apart from the confused legal situation, there were also suggestions calling for a reform of Paragraphs 175 and 175a. From around 1947 they were submitted to the SED from various sources, but without success. They were all rejected with the argument that there were more pressing tasks. This argument seems plausible when taking into account not only the difficulties arising from the implementation of land and industrial reforms ownership, and the legal safeguarding of the newly nationalized industries (Volkseigentum) and the denazification, but also the need to solve the pressing problems of supplying food to the population. However, other considerations—mainly of a tactical nature—were probably decisive in the determination of the position of the SED leadership on the subject of legal rights for homosexuals.
At the end of the forties the SED was in an awkward situation. Installed by, and dependent on, the victorious Soviet Union, the SED had to fight for its legitimization among the East German population. Its power was still not stable enough for the leadership to risk taking a stand on a question which it could predict, would be misunderstood, and was likely to be rejected by the population at large as well as by its own party members. The Nazis had depicted homosexuality as corrupting and a sickness; and homosexuals, since they took no part in reproduction, were declared ‘‘Folk-corruptive’’ (Volksschädlinge) and, consequently, persecuted. Existing prejudices were reinforced and naturally were to continue after the end of the Nazi regime. In view of the decimation of the population as a result of the war, suggestions for a legal reform in favour of nonreproductive sexual practices could have had a negative influence on the desired political acceptance of the party among the population.
In addition, the political future of the occupied and divided Germany was still unclear. A one-sided decision to repeal Paragraph 175 would have upset what at that time was regarded by politicians both in the East and in the West as the most important basis for reunification, namely, the unity of the judicial system of postwar Germany.
Whether, or to what extent, the severe criminal code applied to homosexuals in the Soviet Union played a role is not clear from the archival materials examined so far. However, such influence cannot be excluded. Key positions in the SED, as well as posts held by its members in the central administration of the Soviet occupied zone, were controlled by functionaries who had been schooled in the Communist International and lived in exile in Moscow where the reintroduction of the criminalization of homosexuals had taken place under Stalin in 1934. In addition, in the years 1947 and 1948, there was an ideological realignment of the SED to the standpoint of the Communist Party of the Soviet Union (CPSU). Furthermore, the SED functionaries in the German Justice Administration worked closely with members of the legal department of the Soviet military administration on the question of laws and their application.
With the foundation of the GDR in October 1949, the matter of homosexual rights again became topical. It was necessary to decide whether the penal code in the version of January 30, 1933 should provisionally retain its validity in the ‘‘workers and farmers’ state’’ or whether individual paragraphs should be modified.
Even if relatively few judgments passed down by East German courts before 1950 were related to Paragraph 175—in the three and a half year period from the beginning of 1946 to June 30, 1949, there were only 129 judgments—the SED was not willing to repeal the controversial paragraph. It was still not possible to foretell the direction that the general political developments would take in postwar Germany. The party wanted to keep its political options for a unified Germany open and, consequently, the government of the GDR expressly declared itself to be ‘‘provisional.’’
There was a practical necessity in the GDR provinces (Brandenburg, Mecklenburg, Saxon, Saxon-Anhalt, and Thuringia) to remove the existing judicial differences and to achieve a common and binding regulation of the law that finally led to an intermediate solution in autumn 1950. On the basis of decisions made by the Provincial High Court of Saxony-Anhalt in Halle on September 20, 1948 (Oberlandesgericht Halle, 1949, p. 143), of the Supreme Court of Berlin on February 21, 1950 (Kammergericht Berlin, 1950, p. 129) and the State Supreme Court of the GDR on March 21, 1950 (Oberstes Gericht Entscheidungen 1, 1951, p. 215) the Ministry of Justice suggested on October 18, 1950, and in light of the intended issuing of a new (and, in the GDR, for the time being) binding version of the Penal Code, the following alterations to Paragraph 175:
Paragraph 175: the old version (the version valid before June 28, 1935),
Paragraph 175a: the new version (the Nazi-version of June 28, 1935),
Paragraph 175b: inapplicable,
Paragraphs 176-181: unchanged (BAP, DP1/VA 6649, not numbered).
At its subsequent conference, the commission of the representatives of the Ministry of Justice, the provincial Ministers of Justice, the Public Prosecutors, and the representatives of the State Supreme Court decided to accept these suggestions. Legal validity was thus given to the old version of Paragraph 175 and the new (Nazi) version of Paragraph 175a and it was not considered necessary to provide any extensive justification for the decision. This had already been provided by the Supreme Court of Berlin with its basic judgment of February 21, 1950, which states: ‘‘The new decisions regarding Paragraph 175 are necessary … because the Nazi version is based on establishing the fascist objective of the Nazi Storm Troopers (SA), the Hitler Youth and the other instruments of power of the Nazi state to prepare for war by means of military education and training’’ (Kammergericht Berlin, 1950, p. 129).
Since Paragraph 175 contained Nazi aims, it could not be regarded as legally valid. In contrast to this, the Supreme Court of Berlin found that Paragraph 175a did not have ‘‘typical Nazi content.’’ This regulation realized ‘‘progressive ideas in that it defended sexual integrity and thus the healthy development of the youth’’ (Kammergericht Berlin, 1950, p. 129). With this decision the court expressed a stereotype which later determined much of the discussion in the GDR—as well as in the FRG—of the pros and cons of the criminalization of homosexuality: the so-called necessity of special protection for the youth against being coerced into homosexual activity. The decision also put an end to all previous discussions, and any reform of the Paragraph 175 would remain reserved for future amendments to the criminal code of the GDR.
The results of developments in the first years after the war were contradictory. Suggestions for the repeal of Paragraph 175 were not taken up by the SED leadership. Instead—and in contrast to the judicial situation in the FRG—the post-1935 version of Paragraph 175 was evaluated as ‘‘part of the national socialist policies on population,’’ and the legality of the pre-1935 version was consequently confirmed. Both the SED and East German judicial system, however, did retain Paragraph 175a—which had been introduced by the Nazis—considering it to be an expression of ‘‘healthy judicial thinking.’’ One concrete result of these policies was the fact that the intensity of persecution was lessened. However, to deduce a liberal or enlightened attitude from this would be rash. In addition to the confused legal position, both the police and the public prosecution complained of considerable shortages in personnel. They were forced to set priorities in the fight against crime—such as the punishment of industrial crimes, dealing on the black market, etc.
These were not, however, the only contradictions. Those who had hoped that recognition of the post-1935 version of Paragraph 175 as ‘‘having come about from Nazi considerations of expediency’’ would lead to the acknowledgement of persecuted homosexuals as victims of fascism were disappointed, for this was not the case. It was not, however, the evaluation in the Nazi version of Paragraph 175 of so-called ‘‘healthy judicial thinking’’ which blocked the way to vindication but, rather, the associations of political victims of the Nazis which resisted all such attempts. According to their reasoning, they did not want to be associated with ‘‘criminals.’’ The general secretariat of the Association of the Victims of the Nazi Regime (Vereinigung der Verfolgten des Naziregimes, VVN) remarked that homosexuals ‘‘had not been, principally, opponents of the Nazi Regime’’ (Letter VVN of 23.9.1948. The estate of Klimmer, not numbered). Clearly, this would not have been true for the millions of Jews, Jehovah’s Witnesses, Gypsies, and those men and women declared by the Nazis to be antisocial—such as beggars, vagabonds, and the habitually unemployed. Concentration camp prisoners who had worn the pink triangle were actually refused membership in the victims’ association: ‘‘We are strictly opposed to allowing homosexuals membership in our organization, whether as individuals or as a group. The condition of membership is whether an antifascist showed resistance. If he did so, he can become a member even if he had not been imprisoned. If such an antifascist is homosexual, there is nothing against his membership. We believe that the mere fact of the persecution of a homosexual by the Nazi regime is no reason to grant membership’’ (Letter VVN of 23.6.1949. Ibid).
This position was maintained conjointly by the German associations of the political victims of the Nazis both in the GDR and in the FRG into the 1980s. They relied on the assertions of the political left from the beginning of the 1930s: that many homosexuals were themselves Nazis (compare Grumbach, 1995; Hekma et al., 1995; Zinn, 1997). Thus the secretary of the Sachsenhausen Committee of the FRG, Heinz Junge, believed still in 1982: ‘‘Those who wore the pink triangle were not opponents of the Nazi regime, more than a few were ex-members of the SA and SS. Others were completely unpolitical and only a few were antifascists’’ (Junge, 1982, p. 5).
When in July 1984 homosexual men and women wanted to lay wreaths at the memorial sites of Sachsenhausen and Ravensbrück in honor of the pink triangle victims, it was none other than the Committee of Antifascist Resistance-Fighters in the GDR (Komitee der Antifaschistischen Widerstandskämpfer in der DDR) which declared itself ready to assist the Ministry of State Security (Stasi) in preventing this ceremony. A Stasi memo states that: ‘‘The leadership of the Committee is charged with arranging matters so that there are no special problems with homosexuals in the concentration camps. Many homosexuals were criminals and the number of those (homosexuals) murdered is very low in relation to the overall number of those murdered’’ (BfStU, ZA, ZMA XX 10050/1 p. 60). These assertions were, however, contrary to better judgment, for information denied to others was readily available to the leadership of the committee: They had access to the archives of the memorial sites of Sachsenhausen and Buchenwald, which contained plenty of information on the conditions for homosexuals in the camps. This information showed that the majority of the pink triangle victims had not been members of the SA or SS, but were actually those declared by the Nazis to be ‘‘habitual sexual-offenders.’’
The position taken by the committee of former political prisoners toward the homosexual victims of National Socialism is a sad and disgraceful chapter in post-war German history.
A provisional appraisal of the developments up to 1951 thus reveals that the hopes of the homosexual men for the repeal of Paragraph 175 were not fulfilled in the immediate postwar years. The reform of the laws governing homosexual behavior was neither a major theme in postwar politics, nor a key issue in the policies of the SED. It was permanently overshadowed by the so-called fundamental questions of politics. In this regard nothing was to change in the years that followed since the SED consequently took up differing positions. It both approved and rejected reforms. But what was becoming clear in the early postwar years took on even stricter parameters in the fifties and sixties: the pro-or-contra position simply reflected the situation of the ruling party. Dependent on its degree of political stability the SED either supported reform, or removed it from its agenda. The approval of the reform of Paragraph 175—or its rejection—thus became a subtle gauge of the stability of the regime. The policy of the SED in the so-called homosexual question confirms an experience common to those countries where state socialism held sway, and which political sociologist Rüdiger Lautmann has summarized in the formula, namely that ‘‘the legal status and social standing of the homosexual depended on the structural legitimacy of the regime’’ (Lautmann, 1977, p. 445).
Attempts to Reform the Laws on Homosexuality in the Fifties
At the beginning of the fifties, the political constellation changed as a result of the consolidation of positions between the two systems in the cold war. Together with their ally, the Soviet Union, the SED leadership pursued a policy of separation for East Germany from the rest of Germany. The ‘‘planned construction of socialism’’ was announced at the second party conference in the summer of 1952. The aim was to establish in the GDR a political order modeled extensively on the Soviet Union. The codification of the new and so-called socialist legal norms were credited with a decisive role.
As early as March 1952, a decision was taken in the Council of Ministers to set up a commission attached to the Ministry of Justice under the chairmanship of the then vice-president of the State Supreme Court of the GDR, Hilde Benjamin (1902-1989). Its task was to produce a proposal for a law to regulate the work of the courts (Gerichtsverfassungsgesetz), a law on criminal procedure, and a new criminal code. The laws on regulating the work of the courts and on criminal procedure were passed by the Volkskammer (the East German Parliament) in October 1952. The adoption of a new Penal Code did not take place, however, until 1968.
In the period from 1952 up to 1968, there were three proposed versions of a new Penal Code for the GDR, all containing modifications of Paragraph 175. Yet it was not until the draft of 1967 was adopted as the Penal Code of the GDR in 1968 that homosexuality was decriminalized: in the new code, there was no Paragraph 175. So-called ‘‘mere’’ homosexuality (consensual sexual activities between two adult men) was no longer punishable. However, Paragraph 151 was introduced, according to which sexual activities between an adult (over 18) and a youth between the ages of 16 and 18 was punishable. The regulation also covered sexual relations between women—which was a new offense. The establishment of an age of consent set in this manner at 18 was a form of discrimination against homosexual relationships because in the new Penal Code the age of consent for heterosexuals had been set at 16 years. It was another twenty years before this paragraph was also repealed and, thus, special laws governing homosexuality were removed from the Penal Code. In 1952 such a far-reaching solution was unthinkable.
The Decriminalization of ‘‘Mere’’ Homosexuality in the 1952 Draft for a New Penal Code
The 1952 draft for a new Penal Code recommended the repeal of paragraphs punishing the mere fact of homosexuality, but the continued criminalization of requisite facts such as coercion, sexual acts with minors, and prostitution (BAP, MdJ, P1 VA 1326, p. 290f.) To make it clear that this was not a general acceptance of homosexuality the lawmakers suggested a further paragraph with the title ‘‘Acts of Public Gross Indecency,’’ which states that: ‘‘Whoever undertakes the unnatural gratification of his sexual urges under conditions that offend the moral sensibilities of the working people will be punished with imprisonment for up to one year’’ (ibid.).
This amendment was also intended to replace the old Paragraph 183 of the Penal Code, which dealt with exhibitionism, but the offense was extended to include ‘‘unnatural gratification,’’ thus making all sexual acts committed in a public place punishable by law. In addition, it contained the broad expression of ‘‘offending the moral sensibilities of the working people,’’ which bears a fatal resemblance to the term introduced by Nazi legal experts: Gesundes Volksempfinden (healthy popular sentiment).
The draft followed proposals made by representatives of the KPD and SPD in the Weimar Republic, which had regarded mere homosexual acts between adult males as posing no particular danger to society, but considered coercion, seduction, and homosexual prostitution as ‘‘harmful to society’’ and felt that the youth had to be protected against homosexuality.
This point of view was held not only by the judicial experts of the GDR responsible for the 1952 draft, but also by legal experts and physicians in the Federal Republic. For example ‘‘a note regarding Paragraphs 175 and 175a of the Penal Code’’ sent by the German Society for Sexology to the lawmakers in Bonn on November 1, 1950 concluded that: ‘‘According to the knowledge of psychologists, psychiatrists, and legal experts, there is a kind of homosexuality against which punishment is ineffective since it contradicts a basic human drive. The state should only be concerned with using the law to protect third parties. Thus requisite offenses such as the exploitation of dependency-relationships, force, the exploitation of the sexual inexperience of innocent minors, and (male) prostitution should always be punishable. The existing Paragraph 175 of the criminal code contains an offense that is legally irrelevant and should be repealed. This does not mean, however, the legalization of homosexual acts. Customs and morals, which may differ from the area of law, pass their own judgment’’ (quoted acc. to Ackermann, in: Bauer et al., 1963, p. 153).
Similar arguments were made by the members of the Law Commission of the Ministry of Justice entrusted with discussing the 1952 draft of a new Penal Code. It would be erroneous, however, to assume that massive support of some members of the Law Commission for maintaining the moral condemnation of homosexuality was typical only of the GDR or a sign of the narrow-mindedness of some top party members and state officials. Rather, the rejection of repeal was in tune with the moral attitudes of the 1950s—both in the East and in the West. In both societies, the public display of the naked body was in and to itself already sufficient to be regarded as ‘‘indecent and harmful to the youth.’’ ‘‘Unnatural extramarital sexual acts,’’ ‘‘same-sex sexual relationships’’ and (male)prostitution were regarded in the West as a threat to the institutions of marriage and the family and in the East as unworthy of a communist. The SED took innumerable inner-party disciplinary measures as a result of such ‘‘misdemeanors.’’ The general animosity toward sexuality in these years was a reflection of a certain mindset fixed on performance and efficiency during the rebuilding of the economies of both states. Economic efficiency demanded asceticism as much in the East as in the West. In such a climate, how else should one judge a call for legal reform in the interest of sexual activity characterized by spontaneous association and dictated exclusively according to sexual desire be judged, when not as a threat to social morality?
What was, indeed, specific to the GDR were the reasons—discussed internally by the Law Commission—used to justify the need to repress homosexuality, especially if it were not to remain a punishable offense. Homosexuality was regarded among the comrades as a ‘‘typical sign of degeneracy of the ruling class in the capitalist system’’ (BAP, MdJ, P1/VA 1326, p. 295). One of the legal experts responsible for the reform of the paragraphs pertaining to sexual offenses, Johannes Gerats, maintains that: ‘‘Homosexuality appeared as a social phenomenon before 1919 (as) a feature of dependency … amongst the degenerates of the ruling class.’’ He remarks that the main cause of homosexuality was not unemployment, but that this unfortunate circumstance provided the ‘‘ruling circles with the opportunity to suggest that unemployed people become prostitutes.’’ Thus he concludes ‘‘it is not accidental that homosexuality is not widespread among the working class. There are only remnants left. These must continue to be suppressed’’ (ibid., p. 295). He persists: ‘‘We will continue the moral approbation of homosexuality … If we say nothing about homosexuality it will become a socially normal phenomenon. For this reason, we must continue the moral condemnation of such matters so that such people will feel the need to continue to be isolated and to isolate themselves, solely on the grounds that homosexuality is an unnatural condition’’ (ibid., p. 296).
Despite this ideological narrow-mindedness, the suggested regulation marks a considerable advance. Had it come into force, it would have meant that for the first time since 1871 mere homosexuality would have been decriminalized. However, this step would require another sixteen years.
The Collapse of the Draft of 1952
The Volkskammer neither discussed nor voted on the draft of 1952. Rather, the proposed amendments were halted by the events of spring 1953. The death of Stalin in March of that year led to passionate differences on the future course of the party, and the Rebellion of June 17 provoked its most serious political crisis thus far. After the suppression of the uprising, the policy of the SED leadership was marked by its fear of renewed destabilization and the work on a new Penal Code was put aside. There were three decisive reasons for this:
- The CPSU politburo was critical of the political course of the SED leadership. The old Politburo under Stalin had agreed in the summer of 1952 to the building of socialism in the GDR; but in view of the mass exodus of GDR citizens in the spring of 1953, the new politburo decided that, without the necessary internal and external political preconditions, the building of socialism in the GDR was not to be forced through (comp. Schirdewan, 1994).
- The SED-leadership strove to consolidate the party during this extremely critical phase. The Neue Kurs (new course) announced after June 17, 1953, was supposed to secure the SED government’s hold on power by meeting certain material needs of the population. In addition to improving living conditions, measures were taken to strengthen public security. The planned reform of the Penal Code, which, along with the introduction of new legal standards, was supposed to speed up the building of socialism, diametrically opposed this process.
- Max Fechner (1892-1973)—who was responsable for the reform of the Penal Code—was removed from office as the Minister of Justice and a member of the SED Central Committee. He was the victim of a campaign within the party against ‘‘social democracy’’ during which so-called social democrats were either expelled or ‘‘punished according to the law.’’ In contrast to the relatively lenient treatment of others who were accused of splitting the party, Fechner was treated with particular severity. The Public Prosecutor accused him of having placed obstacles in the way of the trial of the ringleaders of the June 17 Rebellion. Since Fechner could refer to the workers’ right to strike—then still guaranteed in the constitution—this charge was not on solid ground (comp. Fricke, 1995). The SED finally turned to a method used before 1933 by the KPD—along with other parties—whenever it had become necessary to remove politicians who had fallen out of favour and could not be dealt with otherwise: they accused Fechner of sexual activity with other men. After two years detention, he was brought before the State Supreme Court of the GDR and sentenced to eight years’ imprisonment ‘‘for rousing a boycott in the spirit of Article 6 of the Constitution of the GDR, and for fascist propaganda in the sense of Control Commission Decree No. 38, Paragraph II, Articles III and IIIa, and for offenses against Paragraphs 175, 175a, 73 and 74 of the Penal Code.’’ According to the judgment ‘‘the accused was not only politically, but also morally degenerate. He had had a homosexual relationship with his chauffeur S … from the middle of 1952 until May 1953. During this period, the accused carried out anal intercourse with S … five or six times. In addition, the accused sought to tempt the still under 21-yearold witness G.—a member of the Guards’ Battalion of the People’s Police—to commit indecent sexual acts by unbuttoning his trousers and touching his genitals’’ (Oberstes Gericht, 1Zst (1) 2/55).
The interruption of the work on a new Penal Code meant that yet another attempt to reform Paragraph 175 had been unsuccessful. In the following years the policy of the SED on homosexuality was defined substantially by the stereotypical depiction of homosexuality as ‘‘a typical feature of the degeneracy of the capitalist ruling class.’’ This policy was bound up with the naive and—for homosexuals—dangerous assumption that, with the nationalization of the means of production, homosexuality will lose its social basis and thus have no future relevance. For the time being, it was not possible to forego the legal punishment of homosexuality, because the ‘‘remnants’’ would have to be suppressed. In addition, it was believed that the absence of the legal punishment of homosexuality would lead to its popularization, and the authorization of clubs, newspapers, and magazines for homosexuals would bring about exactly what was supposed to be avoided, namely, a negative influence on adolescents.
From a position of relative strength and with the intention of securing its power, the SED leadership pursued a new codification of the Penal Code in 1952, within which the offense of homosexuality was to be modified. When the legitimacy of its rule was challenged by the events of June 17, 1953, it felt it necessary to withdraw some of the criticized parts of its policies, and concentrate on stabilizing the internal political conditions. As a result of the radical reorganisation of the power and disciplinary structures over the following years, not only were critical and oppositional voices from within the party expelled, but also the so-called block-parties were brought into line with SED policies, and the sciences were obliged to aquire and use Soviet knowledge. ‘‘The political and moral unity of the people’’ was propagated and accompanied by a repressive approch to sexual morality. Consequently, conservative moral attitudes were given a new lease of life, as the social and political measures introduced were intended to strengthen the desire to have children and to encourage early marriages and the founding of families. Anything which contradicted this policy was rejected. One of the many effects of this policy was the discontinuation of the debate concerning the reform of that part of the Penal Code dealing with sex, which would thus have included Paragraph 175.
Due to the delay in the reform, the party was forced to carry out its own version of the law by interpreting the paragraphs of the Reich Imperial Penal Code—including Paragraph 175—which were still current and valid. In 1954, the State Supreme Court of the GDR issued a fundamental judgment stating that the new version of Paragraph 175a—the 1935 Nazi version—was legally valid. In contrast to Paragraph 175, it continued, Paragraph 175a did not presuppose an act similar to intercourse. Thus the interpretation of 1935 was also used wherein offenses committed against Paragraph 175a could be considered ‘‘indecent’’ if they had led to sexual excitement or the gratification of sexual desire, that is, if—according to the new interpretation—they ‘‘offend the moral sensibilities of the working people’’ (Oberstes Gericht. Entscheidungen 3, 1955, p. 283).
At the same time, members of the Walter Ulbricht German Academy of Political Science and Jurisprudence (Deutsche Akademie für Staats- und Rechtswissenschaft) in Potsdam-Babelsberg—an institution under the control of the SED—commented on the penal laws concerning the group of offenses known as ‘‘crimes against the person.’’ With regard to the justification of the penalization of mere homosexuality, they also adopted the epithet of ‘‘the offense against the moral sensibilities of the working people.’’ They wrote: ‘‘The social threat (of homosexuality) is due to the harmful effect it has on the moral sensibilities of the working people toward a normal and healthy sex life and, especially, the serious danger it poses to the clean and pure education of the youth in sexual matters … Homosexual activities—and especially when they are committed with young people—(present) such a threat to society that, in the interest of maintaining clean and healthy sexual relationships between citizens, the Farmers’ and Workers’ State must not fail to make use of the means of the law in the fight against such sexually indecent activities as these’’ (Dreßler and Naundorf, 1955, p. 161).
Two years later, a dissertation defended at the same institution criticized this very indoctrination. The author Hans Weber advocated the repeal of Paragraph 175, which had, however, no practical effect whatsoever (Weber, 1957, p. 294ff).
The Second Attempt at Reform 1958
By the end of the 1950s, the SED seemed to have recovered from the shock of the June 1953 Rebellion. Their rule seemed to be safe that at the Fifth Party Congress (July 10-16, 1958) it was resolved to complete the building of socialism. The tasks that were necessary to achieve this aim were specified in the following plenaries of the SED Central Committee, the Siebenjahresplan (Seven Year Plan) and the Deutschlandplan des Volkes (People’s Plan for Germany). The GDR was to display its superiority not only in the field of economics, but it was to show the advantages of the new socialist order in the moral sphere as well. The delegates at the Fifth Party Congress also adopted the ‘‘ten commandments of socialist morality’’ in order to help overcome ‘‘capitalist immorality and non-culture,’’ and to assist the development of new relationships and a new consciousness among the population. The penal system was also intended to serve this ‘‘historical assignment.’’ The fight against all forms of criminality, including violations of the sexual norm, were declared part of the struggle for the ‘‘new man.’’ Although in the documents quoted below there was no direct mention of homosexuality or of Paragraph 175, it was nevertheless quite clear that under these political conditions there was no chance of reforming the laws pertaining to homosexuality.
The 1958 draft for a new Penal Code—already submitted in 1957—recommended the repeal of laws punishing so-called mere homosexuality. The experts based their recommendation on a very supercilious prognosis: ‘‘homosexuality (will) decline under the healthy social conditions of a socialist state, whereas the bad economic relations prevailing under capitalism (anxiety about starting a family, having illegitimate children, and the confined living conditions) were important contributing factors to the spread of homosexuality’’ (BAP, MdJ, P1/VA 2376, p. 549).
Suggestions for the reform of paragraphs of the Penal Code relating to sexuality had been made after discussions with physicians and workers. The opinions were varied, as the minutes of a meeting with doctors in Leipzig clearly demonstrate:
Prof. Dr. Hirschberg (spoke for) the repeal of the offence, because real homosexuality is not a crime but an orientation … Bearing in mind the tremendous infrequency, there was no reason to maintain the offence.
Dr. Weigel agrees with this opinion …
Dr. Leonhardt finds the numbers of homosexuals too high … (He recommends) that outbreaks should be contained and punished, and that a higher penalty be imposed especially if young persons are seduced. The meeting places (of homosexuals) should be better controlled, and, in case of excesses, forthright steps should be taken.
Dr. Wieck agrees with what has just been said. He mentions that there is, for example, a club for homosexuals in Dresden in which rather unsavory charakters—who are also the liveliest proponents of the repeal of Paragraph 175—can hide themselves … A real freedom charter should not be given to homosexuals.
Dr. Aresin gives a similar account. She sees a danger in the repeal of Paragraph 175, but it should not necessarily be applied with severity. The repeal, however, in her opinion, would lead to an increase in the number of homosexuals. In regard to homosexuality among women, she reports that a woman generally does not stay with her female partner as soon as the opportunity arises with a male partner. Paragraph 175 does have, however, an educational effect. Homosexuals are unhappy people and to be pitied, but one must demand of them that they take control of themselves—just as it is also demanded of us in matters of sexual behavior’’ (ibid, p. 551f).
The workers of the Ernst Thälmann power station in Leipzig demanded that ‘‘if the paragraphs of the Penal Code against homosexuality were repealed, at least the protection of the public should be retained (ibid). Workers of the people’s enterprise Central German Worsted Yarn Mill in Leipzig said that ‘‘for the overwhelming majority of the working people, homosexuality was morally deplorable. The most important thing, however, was whether such behaviour was damaging to society. Since this is not so, there is no need to create a law which punishes homosexuality. Punishing an inborn tendency is unlikely to bring success. However, the youth had to be protected from such morally deplorable influences … (ibid).
Despite the supercilious prognosis of the experts and the (apparently) democratic legitimization by means of the ‘‘views of the people,’’ the commission of the Ministry of Justice (again under the chairship of Hilde Benjamin) did not adopt the recommendation of changing the law. The main objection was that the effects of de-criminalizing homosexuality were unpredictable. The decisive factor was the opinion of the Deputy Military Prosecutor, Schille, who believed that: ‘‘From the military’s point of view, the decriminalization of homosexual behavior must be firmly resisted. Cases of homosexual acts are quite seldom in the army today. However, where they do arise, they have to be regarded as dangerous, above all, since they have a tendency to spread. It would not be understood by our commanders if such behavior were suddenly to be free of punishment. We have so far always taken very decisive steps in such cases’’ (BAP, MdJ, P1/VA 2376, p. 464f.). With 11 votes against six the commission decided to retain the legal punishment of mere homosexuality.
The draft of 1958 provided for no amendments to the legal situation. By suggesting to maintain the penalization of homosexuality, the ideas of the draft of 1958 were less mature than those in the draft of 1952. Furthermore, the generally poor economic situation, forced efforts to organize agriculture according to a system of collective farms, Khrushchev’s (premier of the U.S.S.R. 1958-1964) aggressive policies on the question of Berlin, and a mass exodus of GDR citizens all threw a spotlight on the political climate at the end of the 1950s and the beginning of the 1960s. Consequently, the reform of the Penal Code was not pursued, and the de-criminalization of homosexuality was once more delayed.
The Decriminalization of Homosexuality in the New Penal Code of 1968
It was not until 1963 that a renewed effort was made to create a new Penal Code. This took place in connection with the complete political and economic consolidation of the GDR, following the closing of the frontier by the building of the Berlin Wall (1961) and the first successes of the new economic policies. Under Walter Ulbricht, the SED leadership propagated a relatively independent type of socialism for the GDR. The growing political consciousness was expressed not only in the passing of a new constitution, but a new Penal Code was also meant to bring the changed social conditions into harmony with the law.
The draft was produced by a commission summoned by the Council of State which had begun work in 1964. In 1967, the Minister of Justice Hilde Benjamin made the results of three years’ work available for public discussion and it was passed by the Volkskammer a year later. As far as one can tell from minutes available so far, there was not much discussion on the subject of homosexuality. The draft envisaged the deletion of the relevant paragraphs, and this was carried without opposition. The new situation was unambiguous: the new Penal Code contained no paragraph which was in any way similar to Paragraph 175 and the offense of ‘‘mere homosexuality’’ had disappeared from the Penal Code. Remnants of discrimination did remain with the newly introduced Paragraph 151 and a higher age of consent for homosexual than for heterosexual relationships; but without doubt the deletion—as opposed to replacement—of Paragraph 175 was a step forward.
This should, however, be evaluated in the wider framework of events. The de-criminalization of homosexuality was not the result of a general liberalization of attitudes toward sexuality as such. There was no such ‘‘sexual revolution’’ comparable to that of the Federal Republic in the GDR at the end of the sixties, nor was there any public discussion as to why the Paragraph 175 had been deleted instead of replaced. The decriminalization of homosexuality was not the result of an ‘‘enlightened’’ position adopted by the party. Rather, it resulted from a political situation in which the SED leadership had achieved such a degree of stability as to see no general danger in foregoing the continued penalization of homosexuality.
At the same time, the newly established paragraphs of political law offered the Penal Code plenty of opportunity to take effective measures against any negative consequences of an eventual ‘‘popularization’’ of homosexuality. Indeed, this was carried out most effectively—as developments in the 1980s will show—by prohibiting the right to organize politically, and by banning gay and lesbian newspapers and magazines.
Caught up in the idea that the (uncomfortable) question of homosexuality was solved with the repeal of Paragraph 175—an attitude which was already held by parts of the progressive worker’s movement in the Weimar Republic—the SED remained determined in its moral condemnation of homosexuality. A commentary on the new Penal Code states that: ‘‘Same-sex acts harm the formation of sexual-ethical norms and values and the normal sexual development of young people, as well as impede the forming of partnerships with members of the opposite sex … The legally regulated protection of young people of both sexes, in accordance with the opinion that the perpetration of same-sex acts by adults threatens the moral and sexual development of both male and female youth (Strafgesetzbuch der DDR. Kommentar, 1981, p. 386).
With the repeal of Paragraph 175 the efforts to eliminate the legal discrimination of homosexuals in the GDR came to a provisional end. As much as decriminalization was in the interests of gay men and—as far as its symbolic importance is concerned—also of lesbians, the SED could hardly have been less concerned with the interests and needs of homosexuals in ruling on this decisive question. Just as the legal solution to the question of homosexuality was an instrument of politics and subjected to the power interests of the SED, so were the demands for changes in the social situation of gays and lesbians. Even after the new Penal Code came into effect, the situation for lesbians and gays in the GDR was not an issue for the policies of the party or the government.
The question as to the effects of this policy on sentencing practices and, generally, on the social situation of homosexual men and women in the fifties and sixties cannot be dealt with effectively here. However, it should be clear that the delay in the reform of the legal paragraphs pertaining to homosexuality established a trend which aimed to control sexual behavior in the interests of the socialist utopia of the new ‘‘socialist personality.’’ Individuals and groups which diverged from these character-models were to be led toward sexual ‘normality’ by maintaining the threat of legal punishment. In other words and more generally: In the GDR, as in other countries where state socialism became the ruling system, the overthrow of the bourgeois society in East Germany was, as George Mosse (1985, p. 21f) states, not accompanied by sexual revolution. The relationship between respectability and socialism shows clearly how effectively bourgeois morality has penetrated all layers of the population.