2. In particular the appellant perceives a transgression of the boundary set for the lawgiver by Art. 2 Sec. 1 GG in the inclusion of immoral acts of all sorts, in particular, mutual masturbation, under the criminal provisions of the new version of § 175 StGB. In particular he had in mind this expansion of the criminal characteristics of the offence when he fought against the regulation on the basis of its National Socialist quality.
[ . . . ]
Homosexuality is peculiar because it offers few clearly visible characteristics that allow us to distinguish between serious cases and cases of lesser importance. Although the Prussian law and court opinion since the eighteenth century restricted criminal penalties to intercourse-like acts, that is, to particularly coarse forms of activity, and excluded acts of masturbation, there are no convincing reasons for this distinction. The legal pronouncement of the Reich Court up until 1935 also did not solve the problem of setting boundaries, because it was unable to provide a clearly circumscribed definition of intercourse-like activities. In legal commentary there was considerable criticism of the absence of a clear determination of the characteristics of the criminal act, in particular because the restrictions developed in legal decisions made it very difficult to provide evidence. The consequence was that in the draft reforms, in suitable instances there was no consideration of restricting cases to those of intercourse-like acts; every 'immoral activity' and 'act of letting oneself be abused for immoral acts,' in short, all acts were placed under criminal penalties. Given these circumstances, it cannot be classified as a violation of the fundamental principles of a state ruled by law, if the law of June 28, 1935 abandoned the restriction of simple homosexuality to intercourse-like acts, in particular, because various acts can be combined, as the example of the appellant indicates; and for moral sensibilities there is hardly a difference among them.
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Source of original German text: Entscheidungen des Bundesverfassungsgerichts [Decisions of the Federal Constitutional Court].Tübingen: J.C.B. Mohr (Paul Siebeck), 1957, pp. 389-43.
Excerpted English translation with commentary by Robert Moeller first published in Difference, Equality, Homosexuality, and the Law in Postwar West Germany: A Documentation. Berkeley, CA: Center for German and European Studies, no date. Used with permission.