Rüdiger Lautmann:
Historische Schuld - Der Homosexuellenparagraf in der frühen Bundesrepublik
Historical Guilt. West Germany’s Anti-homosexual Paragraph 175 Between 1949 and 1969
English abstract
Criminal policy in Germany denies its responsibility to compensate for the effects of the Penal Code’s Paragraph 175. Up until 1969, homosexual acts between males were prosecuted. But this prescription has been unconstitutional since 1949, because it violates the general right of privacy (Art. 2 of the Grundgesetz, the constitution). Germany’s parliament in 2000 formulated a mere apology. However, this declaration cannot repair the injury and collective damage suffered by generations of gays and lesbians. Historical research may help with detailed studies to bring a more substantial policy.
Even among legal experts, it is still not universally known that the German Penal Code’s Paragraph 175 (criminalizing male homosexual acts), which existed in various versions from 1871 to 1994, was (after 1949) in violation of Germany’s Basic Law. This means that not only did the Paragraph itself need to be rescinded, but also all the criminal convictions that relied upon it. However, politicians have remained resistant to the novel idea of a modern state, based on the rule of law, retroactively annulling its own decisions. This historical debt needs to be repaid. Not only to the homosexual men convicted at the time, but to all gays and lesbians since the founding of the Federal Republic of Germany. This legal threat affect them both directly and indirectly, by constraining all major aspects of their lives. Long after 1969, same-sex-loving men and women, especially those middle-aged and older, were still greatly disadvantaged in many spheres of life. By pursuing detailed research, the historiography of homosexualities can help ensure that collective redress does not result only in lip service, as seen in the parliamentary "apology" of the year 2000.