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The Federal Constitutional Court Rules on the Constitutionality of Paragraph 175 (1957)

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The differences in nature described here are also apparent from a social perspective.

Thus, the drive toward a "superstructure," a "home" (Giese), present in both sexes, can lead to long-lasting relations for homosexual men, but this is seldom achieved. Frequently, male homosexuals actively strive toward a homosexual group, but they reject more family-like ties, and they tend toward constant change of partners. Lesbian relationships, by contrast, tend in general toward permanence (Scheuner, Wenzky, Giese). Add to this a consideration of men's greater sexual aggression and it becomes apparent that the danger of homosexuality spreading among men is far greater than among women.

The difference in the desirable age-range of the partner strongly reinforces this difference (Grassberger). There are no adolescent lesbians; we know of no instances of the seduction of female youth by lesbians or even of tendencies that are analogous to the violation of young boys (Wenzky, Wiethold-Hallermann, Giese). [ . . . ]

A further difference in the social manifestation of male and female homosexuality is that homosexual prostitution represents a phenomenon specific to male homosexuality. None of the expert witnesses even knew of exclusively lesbian prostitution. [ . . . ]

Finally, the difference in social manifestations is apparent in the difficulty in locating the boundary between a lesbian relationship and a purely tender female friendship because for lesbians as well, tender feelings predominate over what is purely sexual. As a consequence, were female homosexuality a criminal offence, women would be far more subject to the danger of blackmail than men (Schelsky, Wiethold-Hallermann).

While the other expert witnesses unanimously see male and female sexuality as different, determined by the difference of man and woman as sexual beings, the expert witness Kretschmer advocated a somewhat different opinion. Although he did not question that there are differences between male and female sexuality -- he characterized that as something that we could take for granted, and added, "we would hardly anticipate that the nuances in male and female sexuality would not somehow express themselves in the relations among homosexuals as well." In his subsequent remarks, however, he placed an emphasis on the characteristics "that are of public interest," that is, he asked himself whether male and female homosexuality were characterized by thoroughgoing differences in terms of the danger they present to society and the danger of "threats to persons and legal property." From this perspective, he denied the existence of "truly fundamental differences" between the homosexuality of the two sexes. [ . . . ] The report of the expert witness Kretschmer thus diverges from those of the other experts not because it denies differences between male and female homosexuality, but because he explains these differences by other means, and because he assesses their significance from the vantage point of the dangers they present to society. His comments point to the desirability of decriminalizing homosexuality between adults along with introducing particular protection of young women from homosexual seduction and possibly the criminalization of simple "leading astray" in addition to "seduction" as stated in ยง 175a Nr. 3 StGB.; this may be important for discussions of desirable future legal reform but it provides no standard for assessing the constitutionality of the existing law according to Art. 3 GG. What counts is whether the characteristics of male and female homosexuality are different, stemming from biological differences. Based on all the evidence from its investigation, the court is convinced of this. Thus the constitutional principle of the equal rights of the sexes is not applicable in this case.

This conclusion is further confirmed by the fact that in the battle for the equal rights of the sexes there was never any mention of the equal treatment of male and female homosexuality.

[ . . . ]

In the final analysis, the prohibition of differential treatment of Art. 3 Sec. 2 and 3 GG is not applicable in the context of criminal provisions against homosexual immorality, because the peculiarity of women as female sexual beings and the peculiarity of men as male sexual beings determine the characteristics of the criminal offence so fundamentally and so completely differently that the comparable element, the abnormal tendency of the drives to one's own sex, is of no significance; in a legal sense, lesbian love and male homosexuality appear as incomparable circumstances.

[ . . . ]

In yet another charge, the appellant alleges that the punishment of simple male homosexuality is arbitrary, because it is of no public concern, and he claims that the intervention of state authority into the arena of personal freedom is unjustified. This charge must be examined from the perspective of Art. 2 GG.

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