Since 2002, it has been established that indecent exposure is punishable only for men.
In the 2002 ruling by the German Federal Constitutional Court, which criminalizes indecent exposure only for men, reference is made to a court decision stating, among other things, that “unnatural sins, which due to their abomination cannot even be mentioned here, should be punished with ‘complete eradication of remembrance’ through imprisonment.”
To justify the criminalization of indecent exposure solely for men, the Federal Constitutional Court applied a law that was enacted by the National Socialist Reich government based on the Enabling Act.
This special criminal law for men is unique, although it may not be immediately understandable for enthusiastic advocates of #MeToo and gender equality. After all, our constitution states: “All people are equal.”
The idea that it might be somewhat unfair to legally treat female exhibitionists differently—or rather unequally—had already occurred to two self-proclaimed (male) exhibitionists in 1999 and 2002. They challenged their convictions before the Federal Constitutional Court, but the outcome was clear: they failed.
Despite all the proclaimed principles of gender equality, lawmakers and the Federal Constitutional Court still firmly believe that the display of the naked female body should not be punishable. In its reasoning, the highest court casually referred to a constitutional court decision from 1957 (see attached). That decision clearly established and affirmed that it was entirely acceptable to punish male sexual behavior differently than female sexual behavior.
At the time, two homosexual men argued that it was “unequal” to imprison only men for “unnatural fornication” while leaving lesbian women unpunished.
The reasons why it remains entirely acceptable to punish male exhibitionists but not female exhibitionists, according to our constitutional judges, are the same as in the 1957 decision. That decision states:
“Even the physical structure of the sexual organs indicates that the man has a more pressing and demanding function, while the woman has a more accepting and willing-to-submit function.”
The constitutional judges also recognized:
“The fundamental difference between men and women is that fatherhood, following the brief act of conception, is only connected to it through temporally separate social obligations. (…)
Unlike men, women are involuntarily reminded by their own bodies that sexual life is associated with burdens. This may explain why, in women, physical desire (sexuality) and tender emotional capacity (eroticism) are almost always intertwined, whereas in men (and especially in homosexual men), these components are often separated.
The cultural task of combining pleasure with a sense of responsibility is much more frequently failed by male sexual behavior.”
Finally, the ruling declared:
“Male (homo)sexuality appears in public far more frequently than female sexuality, which may be due to the greater sense of shame and restraint in sexual matters observed in women.
The difference in social perception is also evident in the fact that, given the predominance of tender emotions over pure sexuality in lesbian relationships, it is often difficult to distinguish between lesbian love and a close female friendship.”
Following this reasoning, the court in 1957 concluded that differentiating equality rights within the framework of criminal provisions against same-sex fornication was entirely justified:
“Because the distinct nature of women as female sexual beings and men as male sexual beings shape the criminal offense in such a significant and decisive way that the comparable element—the abnormal redirection of the drive toward the same sex—becomes secondary, and lesbian love and male homosexuality appear as legally non-comparable offenses.”
In other words, the argument is that men supposedly exhibit a significantly more aggressive sexuality because sex for men is merely about pleasure, whereas for women, it serves solely the purpose of pregnancy—making men irresponsible, particularly when it comes to sex.
The fact that the law on which the Federal Constitutional Court based its decision originates from the Nazi era was not seen as an issue. It was deemed fully applicable, as it was also written in the Old Testament that homosexuals should be punished!
Thus, when it comes to sex, men and women are apparently not comparable after all—meaning no equal treatment and, therefore, no equality in indecent exposure laws.
