Th. Wilhelm Erdle. Angriffe auf die Sittlichkeit Jugendlicher und Angriffe Jugendlicher auf die Sittlichkeit: Gedanken zum Problem der Homosexualität im kommenden Strafrecht. Dissertation for the doctorate at the University of Cologne School of Law, 1939.
 

Section IV. Suggestions for the Future Criminal Law

Almost every scholar and scientist who has dealt medically with the question of homosexuality has formed a personal opinion and elevated it to a doctrine. In earlier times, both doctors and lay-persons considered homosexuality a vice, [but] at the end of the last century von Krafft-Ebing1 in Vienna became the first to make reference to contrary sexual feeling in homosexuality. Two theories developed regarding the cause of contrary sexual feeling: the Acquisition Theory, which considered homosexuality an acquired inclination, and the Constitution Theory, which considered it an innate constitution.

The initially numerous adherents of the Acquisition Theory became fewer and fewer; finally, its main proponents were Cramer2 and von Schrenck-Notzing.3 Some of the adherents of the Constitution Theory considered contrary sexual feeling as an abnormal, pathological phenomenon, some as a normal, physiological phenomenon.

Von Krafft-Ebing and Moll4 both adhere to the Constitution Theory and arrive by different paths at the conclusion that homosexuality represents a degeneration of the central nervous system and a pathological phenomenon.

One the other hand, Hirschfeld5 considers homosexuality not a pathological, but rather a completely normal physiological phenomenon. He rejects the portrayal of homosexuals as a third sex in contradistinction to the male and female sex and has established the doctrine of sexual intermediates (male and female mixing ratios simply spread to the area of the sexual drives).

These are the major opinions that are repeated now in all possible variations by scholars and pseudo-scholars in scientific and popular-scientific form, and that are not worth addressing in further detail, especially given the mostly Jewish authorship of them.

As a result of all the cases dealt with, especially in view of the juveniles, both seducers and seduced, addressed in detail in Section III [previous section of this work] yet chosen arbitrarily from a plethora of cases, I would like to affirm the following (which I do without regard to the previously published scientific opinions which are expressed in some cases in favor of, but mostly in propagandistic opposition to the criminalization of illicit sexual acts against nature, and which therefore can claim no right to scientific consideration):

Innate homosexuality - a fixed orientation toward contrary sexual feeling - does not exist.

It is naturally undisputed that there are people who are hermaphrodites, i.e. who have some male and some female primary and secondary sexual characteristics. In accordance with their morbid bodily constitution, these people also have a morbid sexual feeling. They are sick people, who, thank God, are very rare - in spite of all my efforts I have only met one hermaphrodite during my employment with the public prosecutor's office - and are not of interest for the problem of homosexuality.

Every normal juvenile has a sexual drive. This drive has a heterosexual and a homosexual orientation.

In a healthy juvenile, the drive is fully sublimated during childhood, and awakens only with puberty and then, as a matter of course, it is directed toward the other sex. This development can be assisted by making the Hitler-boy aware at the decisive age that a girl is not something inferior that is physically and mentally below him, but rather something different and yet complementary to him that he should even aim to possess and honor and thus to love.

In large sporting shows that the boys should attend at the appropriate age, the League of German Girls [Bund deutscher Mädchen] should demonstrate that the girls are equivalent to athletic boys in physical beauty, and that the era of the girl physically atrophied in the factory or sewing room is gone for ever.

Then the homosexual drive component will completely atrophy, it will not even have a chance to be kindled; on the other hand, the heterosexual drive will be able to develop more and more to the point of marriage and the first sexual intercourse.

Then the boy will not need any psychoanalytic treatment to be healed from the consequences of his infantile masturbation and early anal-erotic experiences.6 With this kind of child-raising, even masturbation is ruled out, at least excessive masturbation, and definitely mutual masturbation.

On the other hand, if the boy is seduced by a homosexual - whether a man or an older schoolmate - to perform homosexual acts during puberty, or even in the pre- or post-pubertal period, or even if his sexual imagination alone is homosexually stimulated, then there exists at least the great danger (see all juveniles mentioned in Section III) that the first same-sex experience will awaken and kindle the homosexual drive component and possibly bind the juvenile to this homosexual drive orientation for the rest of his life and thereby repress the other, heterosexual drive.

Even after years of heterosexual intercourse, this homosexual drive orientation can reassert itself and is not a sign of fixed homosexual orientation, as many would like to believe, but rather it is only a sign of very early seduction. Usually, a mental and psychological enticement toward homosexual activity also occurs hand in hand with the physical seduction, as shown by examples C and D in Section III.

This development of the homosexual drive component can also occur with late-developing juveniles, who have and seek their first sexual experiences only after they are well over 20 years old.

§ 175a of the Criminal Code [StGB], with its age threshold of 21 years, does not provide sufficient protection to juveniles. It is absolutely necessary to raise the protected age to 25, since it is well known that homosexuals prefer to seek their sexual partners among sexually immature or barely sexually mature, or at least sexually inexperienced, juveniles. It's true, the homosexuals, in their petitions to the Reichstag for the abolition of § 175 StGB, always used to assert that the real homosexual is only attracted by mature partners of nearly the same age and that illicit sexual activity with juveniles occurred among them just as infrequently as among heterosexuals, but, interestingly enough, in the same breath they also demanded that the age of protection for juveniles should be reduced as far as possible.

Accordingly, then, in § 175 those under 25 years of age should also have the prospect of freedom from punishment in particularly mild cases.

Likewise, of course, wards and pupils (§ 174 Sec. 1 No. 1) should also be especially protected until the age of 25; the same applies for younger relatives in incest.

The same severe punishment should also be incurred by someone who, as a hospital employee, seduces a juvenile up to 25 years old there (§ 174 Sec. 1 No. 3) or who, by abusing a dependency based on a military or employment relationship, commits illicit sexual acts with a juvenile up to 25 years of age(§ 175a No. 2), and, in a new provision, someone who intends to hire a juvenile up to 25 years of age on the condition that he commits illicit sexual acts with him first. In cases in which the partner is older than 25 years, then there should of course also be a punishment, albeit a somewhat milder one.

The most severe punishment, however, should be incurred by a leader of the State or the Party, or of the SA, SS, or Hitler Youth organizations, especially the Military Forces or the National Labor Service, who violates his relationship as a superior and abuses his service position in order to seduce a juvenile (25 years) to commit illicit sexual acts.

It is essential that it should be made clear in this provision that the decisive factor here is not the service rank but the service position, so that it is prevented in future court proceedings that, in order to remain with the Hitler Youth, doctors or musicians, for instance, who are mere members of the HY, claim that they have no service rank and therefore cannot be considered leaders.

This last provision is also very important for political reasons, so that homosexual [youth] leaders do not convert their immediate subordinate leaders into people with whom they are connected by bonds of male love invisible to others.

Specifically, the following was observed in the HY: Homosexual youth leaders, who had been transferred from central or eastern Germany, for example, were able gradually under some pretense or other to arrange for those from their prior surroundings, with whom they maintained a love relationship, to follow them. The objective standard for evaluating comrades had totally given way to an emotional connection which was caused by the sexual pliancy.

In the Police Institute in Berlin-Charlottenburg, there is a diagram posted concerning the spread of a Communist-homosexual youth club throughout Germany. The members of this club had to be homosexual Communist youth, who were connected with one another everywhere. The leader was not even in Berlin; he controlled the strings of this club from a small town in northern Germany, down to the small and medium-sized towns of the Reich.

On the grand political scale, this evil is illustrated by the Röhm revolt and, in the period of Kaiser Wilhelm II, by the unrestricted control held by the homosexual court cabal (the Eulenburg trial),7 both of which were matters that directly threatened state security.

Perhaps it would also be advisable to issue a provision for clergy who offend against juveniles (25 years) that is similarly severe to what the State and the Party will most certainly issue for their leaders; for the church may well rejoice when and if its priesthood ever becomes so cleansed that the scandalous trials of recent months finally cease.

The earlier provision of § 176 Sec. 1 No. 3 will appropriately be stiffened somewhat (longer prison term), and the commission of illicit sexual acts with juveniles under 18 years should be subject to special punishment, because the juvenile under 18 years is even less mature than the one under 25 years and of course the seducer of a younger person should be punished even more severely than the seducer of an older person.

Likewise, a stiff penalty provision is appropriate for sex offenders who commit illicit sexual acts in front of juveniles under 18 years. However, current law has no such provision (the Cologne State Court made use of § 176 in one case).

Youth of both sexes should be protected against seduction to extra-marital intercourse (heterosexual intercourse) until the age of 18; the current protection of girls up to the age of 16 is not sufficient, to say nothing of the fact that the male juvenile is totally unprotected against such seduction.

It remains questionable whether the right to bring criminal charges, which is so poorly utilized by parents and guardians and often abused to the detriment of the youth (see Section I), should continue to be left to them, or whether this crime should be prosecuted by the state, or whether the guardians should merely be deposed before the criminal prosecution.

I recommend leaving parents the right to file a criminal charge both in this case and in assault and battery or in other crimes mentioned in the new criminal law. However, it is insufficient merely to "depose" the parents. Parental influence on young people, in my opinion, will suffer diminishment in the event of this impairment of parental power. So that parents are not able to exercise this parental power not only for the benefit but also to the detriment of the youth, by not filing or by withdrawing criminal charges, as often happened in the past, it is appropriate to assign to the Hitler Youth the right to file criminal charges, in addition to the parents, since pursuant to the Law dated December 1, 1936 (§ 2) the Hitler Youth is supposed, "along with the parental home and the school, to train all German youth physically, mentally, and morally in the spirit of National Socialism for the service of the nation and for the national community." Reasonable parents would as little object to the fact that the Hitler Youth could now intervene with respect to their children in the area of criminal law as to the fact that the Hitler Youth is now recognized as a factor in child-raising along with the parental home. Moreover, the Hitler Youth will only get involved when parents neglect the duty that they should have performed as good Germans and as National Socialists.

In any case, the Hitler Youth must be able to take direct, immediately effective countermeasures; it cannot wait for lengthy deliberations and decisions of the Guardianship Court regarding deprivation and limitation of parental powers.

At the end of the study of the resetting of the various age thresholds, the question remains whether the future criminal law should not refrain from the hairsplitting definition of the constituent facts of the various individual crimes as in all prior drafts (most recently the quite intricate draft of 1927), and replace them with general guidelines that would provide for a clearer overview of the entire criminal law and yet would still be able to cover the specific constituent facts.8

The same considerations that, on the one hand, were decisive in the demand for increased criminal law protection of juveniles up to 25 years of age are also decisive, on the other hand, in the demand that a juvenile who is subject to prosecution prior to his 25th year should be brought before a special court, a juvenile court.

The provision of the Juvenile Court Act of 1923 currently in force, that juveniles from 14 to 18 years are to be brought before a juvenile court, is virtually untenable with regard to its upper age limit. Most juveniles at 18 or 19 years of age are still in the midst of puberty, quite a number of them still in early puberty, and only a few in late puberty. Only a very few exceptional ones are past puberty at 18 years. Legal provisions are not appropriately issued or maintained for the exceptions. The first three juveniles presented by me in Section III (A, B, C) (aged from the early to mid-twenties) are all still at the age of puberty, at least late puberty. The fifth boy, who was seduced at 18 or 19 years of age, was just entering maturity at this time, and I would like to note that such juveniles with late maturity were not deliberately selected in this, but rather that this was a [result of] random chance, or more accurately a general rule that could be expanded indefinitely.

By the way, this advocacy for a significant raising of the age appropriate for juvenile court in no way entails especially lenient punishment of juveniles. The goal is rather that a person who, according to his inner attitude and nature, is not yet mature and finished, but rather is a developing, growing, and coalescing human being, at the moment when he comes into conflict with the criminal law should appear before a judicial bench on which people sit who understand and comprehend him and who by their ruling can educate him to become a serviceable human being. The juvenile offender should be spared from unsympathetic judges who are unable to comprehend his mistake because they have grown old both in attitude and years and, as men who are scarcely able to understand youth anymore, are not in a position to ensure by their judgment that "the numerous people in whom merely an inclination to criminality is present are able by correct education yet to become valuable members of the national community" (the Führer: Mein Kampf, p. 460).

It is inconceivable that a group of 18- to 19-year-old juveniles who have been arrested by the police after a minor raiding expedition should be separated in court: the 18-year-olds going to juvenile court, the 19-year-olds to a court of lay assessors.

The chairman of this court of lay assessors is a worthy judge, a confirmed bachelor of 62 years, separated from his youthfulness by over 40 years and no longer able to remember what he did as a student. One of the associates is a year older, also a bachelor, managing director of a factory, totally alone in the world for 35 years, and the other associate is five years younger, but an all-the-more dried up, married but childless master tailor.

And these men, who certainly have the best of intentions, are judging the pranks and assuredly reprehensible deeds of 19-year-olds.

How this judgment is construed by the juveniles and what kind of educational influence it is capable of exerting on them, requires no description.

How different would be the effect on these lawbreakers if the HY, with a brief, concise order after an equally brief hearing, were to order disciplinary suspensions for several months with prohibitions against the wearing of badges or uniforms and/or demotions.

The entire judicial proceeding has a pedagogical effect on the juveniles only if all offenders, the 18- and 19-year-olds, are brought before the same court, the juvenile court, and the 19-year-old is not made fully criminally liable as a finished, mature human being, when he may have been simply trailing along behind the "juvenile 18-year-old."

The juvenile court judges should embody youthfulness both in attitude and age. In years to come, the juvenile court judge will have gone through the Hitler Youth and the HY legal organization at some point. His associate should if possible be an active HY leader, perhaps even the honorary HY leader or the HY leader who takes care of disciplinary matters within the HY. The juvenile court judge for his part, insofar as he is also working with the HY, should support these comrades in their decisions in accordance with the recommendations of the HY Disciplinary Rules. Also particularly suited as associates would be teachers and family men. - If the juvenile lawbreakers are females, the associates should include a leader from the League of German Girls, a female teacher, or a mother.

The juvenile court must also be in a position to punish hopelessly degenerate juveniles, e.g. juvenile felons or sex offenders, with prison like any other court, and in milder cases not only to order imprisonment, especially the short imprisonment of a few days which is definitely not very effective, 9 but also a detention, the execution of which should be particular aimed at the education of the juveniles.10

In principle, the juvenile court should be able to impose not only special juvenile penalties, but all other penalties as well. Particularly the case of a juvenile sex offender, who as a youth leader seduces his boys, shows that the full spectrum of penalties must also be available to the juvenile court.

It would be appropriate to let stand the lower limit of criminal liability for juveniles (14 years), and to allow the HY to take disciplinary action regarding all reproachable acts committed prior to this age. Sex offenses at this age can at worst include only mutual masturbation between persons not criminally responsible. These regrettable isolated occurrences cannot be pursued by the State and must rely on disciplinary punishment by the state youth organization.

In general it would perhaps be appropriate in isolated cases of mutual masturbation between young ordinary Hitler-boys of the same age (perhaps up to 16 years) to refrain from a state criminal procedure under certain circumstances, i.e. to leave it up to a disciplinary punishment by the HY leadership, unless the Hitler Youth through its competent regional leader demands a governmental punishment for particular reasons.

The reintroduction of punishment of illicit sexual acts between women is not so imperative, since female homosexuals, who generally limit themselves to same-age, fully mature partners and unlike their male "colleagues" do not aim to seduce adolescents [fragmented sentence]. Experience shows that girls who are seduced by a homosexual woman in the developmental stage return to heterosexual intercourse again after a short time, and stay with it in adulthood. The homosexual drive component is not influenced to the same degree as with male juveniles. Upon a suitable occasion, the heterosexual drive orientation reasserts itself immediately and retains the upper hand. The entire experience remains more superficial for the girl than for the boy.

Moreover, there are also not such important political reasons for the punishment of illicit sex acts between women as for illicit sex acts between men.

If illicit sex acts against nature between mature criminally liable women are left unpunished, a provision is absolutely necessary, on the other hand, that threatens penalties for those who perform illicit sex acts against nature with juvenile females under 25 years of age as wards, pupils, relatives in a hospital, or in exploitation of a service or employment relationship, or of a leadership relationship (League of German Girls, National Socialist Women).

The Hitler Youth will take action against such leaders on its own initiative, as in general it will punish illicit sex acts between leaders and likewise between female juveniles.
 

Concluding Remarks

1. Juveniles should be protected especially against sex offenders until the age of 25 (18).

2. The juvenile sex offender, like any juvenile lawbreaker under the age of 25, should be severely punished or disciplined, but before a juvenile court.