"Non-Germans" Under the Third Reich (78 page)

2. The Main Contours of the National Socialist “Authoritarian Penal Law”

Of what, then, was the National Socialist concept of criminal law composed? How was the new penal code to appear? It is best described as an “authoritarian Penal law,”
¹⁷
the central idea of which was the racist ethnic community, the
Volksgemeinschaft.

Nazi criminal law was determined by a reversal of all the previous theories of punishment and guilt and, above all, the principles of education and resocialization. They were replaced by a pragmatic penal code that stressed the absolute priority of the greater good of the ethnic community (as determined by the NSDAP), with the aim of “severe repression of disobedient elements,” since the National Socialist state was determined to put an end to the “liberalistic behavior of the criminals, especially habitual criminals.”
¹⁸
On that basis, everything that went against the ethnic community was liable to punishment (“whatever served the community was right”), and the purpose of punishment was intimidation. The basic principle of “no crime without a law” was invalidated and replaced by the concept of analogy.
¹⁹
In accordance with this “community proviso,” the very nature of guilt changed. From the National Socialist viewpoint, guilt was defined not by the knowledge of the individual act, but by awareness of the damage to the community.
²⁰
The boundaries between political crimes (treason) and everyday criminal acts thus became increasingly tenuous.
²¹
Any “hostile attitude,” as the literature put it, was a crime against the state.
²²
Thus, any criminal act could be declared a violation of state security and a political crime. Since the masses would not understand this exclusively political approach, the discrimination should be given a moralistic flavor. One should act as though purification were being effected in the political
and
moral sense.
²³

A criminal act was therefore at the same time a breach of faith toward the ethnic community
²⁴
and a morally objectionable act, and in consequence punishment was not merely an expiation but was designed to strip the offender of his honor and exclude him from the community,
²⁵
with consequent loss of all rights. Significantly, the official draft of a penal code by the Grand Penal Law Commission of the Ministry of Justice in 1936 contained the new sanction, drawn from Germanic law, of
Ächtung
(outlawing, banishment) for particularly serious offenses, whereby the offender was to be imprisoned for an unlimited period of time in a similar manner to protective custody.

The clearest expression of a penal code as conceived by the Nazi leadership was the planned Law on Aliens to the Community initiated by the Reich Security Main Office (RSHA) through the Reich Ministry of the Interior, without the participation of the Reich Ministry of Justice, and which was to become effective on January 1, 1945. The purpose of this attempt to legalize the secret protective custody practice of the police by a statute was to assimilate the concept of a punishable act with acts that were “dangerous to the community” or “asocial.”
²⁶

The absolute priority given to the “interests of the community” over and above all individual concerns and the consequent abandonment of every principle of the rule of law found their (first) typical application in the special law against “non-Germans,” who, as we have seen, stood outside the ethnic community and were therefore foreign to it. From here to the concept of “enemy of the people” was but a short step. It therefore seems logical that the notion of “non-German” should from the start be associated or even equated with the negative idea of an asocial person,
²⁷
with the developments in the general penal code we have described as natural consequence. Thus, mere objective appurtenance to a foreign nation could be sufficient to render a punishment more severe, or even serve as the crime itself.

II. “Non-German” Offenders

1. The Introduction of Standards of Special Law

Although the interpolation of elements of special law into established law was accomplished primarily by means of administrative regulations, “recommendations” (to the courts), and specific directives (to public prosecutors) on the part of the judicial administration, several fundamental special regulations were nonetheless enacted as laws in order to lend them greater significance. The first special penal law was the Law for the Protection of German Blood and German Honor (the so-called Blood Protection Law or
Blutschutzgesetz
) of 1935.
¹

This provided mandatory criminal penalties for marriages between Jews and “people of German blood,” as well as for those between other “aliens” and “people of German blood” in cases in which “offspring that would imperil the continued purity of German bloodlines [could] be expected.”
²
Furthermore, sexual intercourse outside marriage between Jews and “citizens of German or racially related blood,” or so-called race defilement, was punishable by imprisonment or jail of up to two years—although only the man was penalized, regardless of whether or not he was Jewish (secs. 2, 5, par. 2), while the woman went unpunished.
³
Jews who employed female domestic servants “of German blood” under forty-five years of age in their households were also liable for punishment of up to one year in jail or fines, or both, if a Jewish man was a member of the household (secs. 3, 5, par. 2).

The application of this law (an “expression of the racial consciousness of the German people”)
⁴
varied; what is remarkable is that the number of initiated proceedings was considerably higher than that of final convictions;
⁵
that is to say, a large number of proceedings were dropped. Whereas application of the law was relatively restrained until around 1937 (i.e., more or less correct), the period thereafter saw a phase of harsher interpretation, one that may be attributed largely to the constant appeals for harsher penalties from the Reich Ministry of Justice
⁶
and the “official” statements on the race question issuing from the Reich Ministry of the Interior.
⁷
This practice was sustained above all by the superior courts, and most especially by the Reich Supreme Court,
⁸
whose “law-framing” activity set it further and further apart from the actual legislative intent. This may be illustrated by the following examples.

Contrary to principles of criminal procedure, forensic evidence and indications of guilt were not taken into consideration when they might benefit the case of the accused. Thus, indications of Jewishness (belonging to the Jewish religious community)
⁹
were interpreted as broadly as possible. In the opinion of the Reich Supreme Court, outward characteristics were all that mattered, not the attitude of the accused.
¹⁰
In order to treat the accused as a Jew, it was therefore sufficient for him to know or have reason to know of his membership in the Jewish religious community; this was true even if he had long since inwardly repudiated the Jewish religion.
¹¹
The term
sexual intercourse
was extended far beyond the legally defined concept of
coitus
¹²
to cover all sexual activities carried out with the intent to “satisfy the sexual urge of at least one of the partners.”
¹³
If this in fact already equates sexual intercourse with “lewd” acts, the Reich Supreme Court would ultimately expand the term
sexual intercourse
to such an extent that its definition as an act was annulled, so that even simply
looking at
another “with lascivious intent” was punishable as “race defilement.”
¹⁴
How this could still be considered a “threat to German blood” remained the secret of the nation’s highest judges and their interpretive arts; one has only to read the nonsensical opinions with which culpability was construed in such cases.
¹⁵

Along the same lines, the definition of
attempted
“race defilement” was expanded beyond all bounds, in order to extend the spectrum of punishable acts as far as possible into the realm of the intent or preparation to commit an act. Even amorous caresses exchanged prior to intended intercourse by the persons involved were held to be attempted “race defilement,” indeed even mere casual physical contact
without
the intent of procuring “sexual gratification.”
¹⁶
This breakdown in the concept of a legally punishable act reached its peak in decisions of the Reich Supreme Court according to which merely verbal expressions, together with preparatory acts (in themselves not seen as punishable)—indeed even a mere verbal invitation to participate in sexual intercourse—were punished as attempted race defilement, because they were held to have an “immediate affinity with the sexual act.”
¹⁷

Mitigating circumstances were given to consideration,
¹⁸
a position for which the judicial system found some very far-fetched justifications. Thus, if sexual intercourse took place at the instigation of the German woman, the Reich Supreme Court did not consider such “racially forgetful behavior of the participating woman” as an extenuating circumstance, because the law did not protect the “sexual honor of the individual” but was rather intended to “secure the ethnic community from any threat to German blood and German honor.”
¹⁹
Also deemed irrelevant were the measure of personal guilt or the motives of the accused, because the only essential consideration was the quality of “race defilement” as a “crime of endangerment.” This “objectification” of “race defilement” also ruled out any exculpatory or mitigating error of judgement on the part of the accused.
²⁰

Even the place where the act occurred no longer played a part in the evaluation of culpability. Even since the Jewish emigration from Germany had set in, liability was no longer limited to acts committed within its borders; now any relations between Germans and Jews, no matter where they were undertaken, were covered under the concept of the so-called crime committed abroad, since they, too, represented “an immediate violation of German blood … in the sense of an organism unified by blood-ties.”
²¹
This, too, contradicted the principles of common criminal law. For according to section 3, paragraph 2, of the Penal Code, crimes committed by German nationals abroad that were not illegal under the law of the country where they occurred were not prosecuted—a circumstance that exactly fit the “crime” of “race defilement” on foreign soil.

In matters of sentencing, too, actual practice became a good deal more drastic. Following the general trend, penalties were largely set with a view toward deterrence.
²²
Thus, even in “normal” cases, the Reich Supreme Court usually sentenced Jews to terms in prison (whereas Germans were given jail sentences), although section 5, paragraph 2, of the law provided the option of prison versus jail terms. This judicial practice originated in a directive of the Reich Ministry of Justice to the chief state prosecutors dated April 2, 1936, according to which prison sentences were the sole appropriate penalty for race defilement committed by Jews; furthermore, average cases were to be treated as aggravated cases. In the great majority of cases, the courts followed the recommendations of the prosecution, although they often reduced the length of the requested sentences. At least, this was the case in Hamburg, Cologne, and Frankfurt on Main; the average prison sentences was still quite long, however. Many sentences for first-time convictions were close to the maximum permissible sentence of two years in prison;
²³
repeat offenders generally received much longer sentences. According to a report in the organ of the Warthegau (or Wartheland) NSDAP dated July 20, 1942, the Special Court in Łód
sentenced a German defendant, a cobbler charged with two counts of “race defilement” with a Jewess from the local ghetto, to six years in prison and six years’ loss of civil rights.The State Court of Appeals in Hamburg, too, sentenced repeat offenders to prison terms of up to six years.
²⁴
During the war, there were even several cases in which the
death penalty
was imposed. Since the Blood Protection Law itself did not provide for the death penalty, the courts constructed a so-called nominal concurrence (sec. 73, Penal Code) with crimes that were punishable by death.