Sexualized violence in the past: The offended husband

Until 1969, adultery leading to divorce was punishable by up to six months in prison. Alternatively, a punishment for insulting the spouse came into consideration. The legislative clean-up remained incomplete.


The accused from Baden had repeatedly sexually assaulted a married woman. In one case penetration occurred.

However, according to the conviction of the Mosbach Regional Court (LG), the woman had not defended herself in such a way that the accused committed the intention of “rape” – a term commonly used at the time for rape § 177 Criminal Code (StGB) was to be proven. The “tough, uninhibited defendant” may have misunderstood the woman’s “awkward, helpless” resistance, the judges said, and acted in the belief that he had “finally gotten the woman there” and “overcame what he called resistance to seduction through his violent and unseemly behavior.” “.

Thankfully, this highly problematic case law on rape, which harbors the myth that women want to be “overcome,” is itself obsolete. However, public prosecutors and courts still have difficulties in prosecuting sexualized violence, especially when it comes to proving intent on the part of the perpetrator.

In the 1950s and 1960s, however, as the arguments of the Mosbach Regional Court show, it was still common to blame women for sexual assaults, to accuse them of “awkward behavior”. The defendant at the time was not convicted of a sexual offence. But he didn’t get away with it entirely. The LG Mosbach convicted the accused according to § 185 StGB for insulting the woman, as well as for insulting her husband. Almost a year later, on February 5, 1952, the Federal Court of Justice (BGH) decided on this matter.

If there is no reason for divorce, it depends

The fact that the accused’s conduct constituted an offense against the woman did not cause the Federal Court of Justice any legal headaches. However, legal concerns had to be cleared up because of Section 172 (1) of the Criminal Code:

“Adultery, if the marriage is dissolved because of it, on the guilty spouse, as well as his accomplices, shall be punished with imprisonment for up to six months.

Because if there was “adultery” in the legal sense, the spouse whose honor was violated by the adultery could not additionally press for criminal prosecution for insult under § 185 StGB.

On the one hand, according to the judges, the woman’s resistance was not strong enough to accuse the accused of having raped her. On the other hand, her reluctance had been sufficiently expressed to give her husband no reason to seek a divorce from her. Therefore, the application of § 172 of the Criminal Code remained blocked and the punishment for the offense of insulting the directly attacked woman and the indirectly in his

Spousal honor lawfully violated man (BGH, Urt. v. 05.02.1952, Az. 1 StR 415/51).

Kisses justify the accusation of being a public nuisance

As strange as the idea may seem today that sexual assault on the wife should be punished as an insult to the husband: From the perspective of the judges active in 1952, it was a return to a liberal understanding of Section 172 of the Criminal Code – their judgment corresponded to the legal one Teaching as formulated in 1931 by Reinhard Frank (1860–1934), famous for his “formulae”, in his commentary on the penal code.

In the case law of the Nazi state, especially during the Second World War, adultery was gradually brought closer to being a life-threatening adventure – without this being the case racist regulations of the Nuremberg Laws or the so-called Polish Criminal Law Ordinance would have needed.

It is noticeable that the Federal Court of Justice in 1952 referred to decisions of the Reichsgericht on the relationship between insulting a spouse and adultery.

With its judgment of November 25, 1940 (Az. 3 StS 25/40), the Reichsgericht had laboriously upheld the principle against a decision of the Leitmeritz Special Court that criminal liability for adultery or insulting the cheated spouse required that the marriage – still – could be divorced.

The husband had forgiven his wife’s infidelity, which used it as a reason for divorce, but filed a criminal complaint against the rival. The special court had sentenced him – to the displeasure of the Reichsgericht – for insulting the husband, § 185 StGB, in connection with § 4 Public Pest Ordinance. According to this provision, anyone who committed a crime “deliberately taking advantage of the exceptional circumstances caused by the state of war” could be “punished beyond the regular range of punishment with imprisonment for up to 15 years, imprisonment for life or death” “if this the healthy feeling of the people requires because of the particularly reprehensible nature of the offence”.

Almost three years later, the Supreme Court indicated that it would put aside the restrictive interpretation of Sections 172 and 185 of the Criminal Code in the future. An innkeeper had two overnight guests, whose husbands had been drafted into the Wehrmacht, apparently had consensual sexual intercourse, and a questionable voluntary kiss from another woman had become a legal matter. The district court in Guben sentenced the innkeeper to one and a half years in prison for one incident and two years for the other, and also for insulting their husbands § 4 Public Pest Ordinance in connection with § 185 StGB (ruling of April 1, 1943, Az. 2 D 71/43).

Nevertheless, gender honor must have been in transition

During the war, the husband in particular, who had been drafted into the armed forces of the Nazi state, was granted an excessive right to exclusive sexual interaction with his wife under the heading of protection of honour. The rival was no longer threatened with just six months in prison, but with severe penitentiary sentences, if not the death penalty – ordered by a special court under certain circumstances without any form, time limit or defense counsel.

The fact that the BGH judges were not embarrassed by their recourse to the more harmless parts of this archaic jurisprudence may have had something to do with their professional biographies – the majority of the members of the 1st criminal senate (Hans Richter (1885-1954), Werner Hülle (1903-1992 ), Ernst Mantel (1897–1971), Roderich Glanzmann (1904–1988) and Heinrich Jagusch (1908–1987)) had served in top positions in the Nazi judiciary.

These gentlemen were hardly to be expected to have eyes that were too open to the emancipated conception of a meanwhile independent gender honor for women – although the Basic Law of May 23, 1949, which had just come into force, probably only played a small part in the change at first.

Because after years of air warfare, which made little difference in the risk of death between the sexes, followed by flight and expulsion, which mothers and children survived in many places without the men, the archaic image of the well-fortified man who, in the sexual integrity of his wife, also had the defended his own honor, a conceivably weak connection to reality – only the Federal Court of Justice in 1952 probably did not quite get this insight.

Criminal law on adultery also raises current issues

However, the legislature did not adopt the rudiments of legal history until the 1. Criminal Law Reform Act of June 30, 1969 an.

This article law not only lifted the criminal liability of adultery (§ 172 StGB) without replacement, also Section 179 of the Criminal Code omitted. According to this norm, anyone who “tempted a woman to allow coitus by pretending to be married” or exploited her misconception “in which she mistook cohabitation for a married one” was threatened with imprisonment for up to five years.

Here the catch-all position of the offense of insult (§ 185 StGB) was even clearer: only the woman was entitled to file a criminal complaint for this form of sexual fraud. However, if she was married, her husband was free to prosecute the rival for insult.

Although a whole legal world collapsed in 1969 – the one in which § 185 StGB systematically served to protect the honor of the sexes in sexual terms, insofar as this could not be done otherwise – the Federal Constitutional Court still came in “Soldiers” resolution of October 10, 1995 (Rn. 116, Az. 1 BvR 1476/91, etc.) to the view that the legal fact of insult does not violate the specificity requirement of Art. 103 para. 2 Basic Law (GG) violate

For around 100 years, the idea of ​​what was punishable under Section 185 StGB was shaped, among other things, by its function as a buffer for other criminal law provisions. Not only case law and teaching on §§ 172, 179 StGB referred to it, but also the whim of the duel, which was deeply rooted in the bourgeoisie and nobility, substantiated the complex of protection of honour. The old §§ 201-210 StGB presupposed a whole system of ideas of honor. For how dangerous the legislator z. B. already held the mere “threat of contempt” in the ruling circles of Germany inclined to duels § 210 StGB a.F. recognize.

A look at the legal-historical clutter of § 172 StGB, which the BGH dealt with again 70 years ago, should perhaps not only be used for amusement or horror at the anachronistic ideas of (great) grandparents in gender issues.

It also gives rise to the question of why the protection of personal honor today has to be sought almost exclusively in the law of social media algorithms and in civil law injunctive relief claims, but a reform of Sections 185 to 200 StGB is not at all a subject of legal policy discussion – After all, in addition to the level of public communication, it should also be about the dignity of those people for whom legal counsel is much more difficult to reach than for the police, who are supposed to have their honor violated, and the media celebrities who are happy to warn.

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