Jane Freeland is an historian of women and gender in modern Germany. She is currently a research fellow at the German Historical Institute London, where she coordinates the International Standing Working Group on Medialization and Empowerment. She holds a PhD from Carleton University (Canada) and is completing a monograph on domestic violence activism in divided Berlin.
On April 14, 1976, the illustrated news magazine Stern ran a special report on rape in marriage in the Federal Republic of Germany. “Rape,” it began, “It was until today a matter of sexual offenders, perverts, criminals. …for the first time it is now revealed that nowhere is rape committed more than in the marital bed.” Surveying women throughout the Federal Republic on sex and intimacy in marriage, including their experiences of marital rape, for the first time the report revealed that in one in five marriages in West Germany women were raped by their husbands. It further showed that in a majority of cases marital rape was violent, and closely connected with physical and emotional abuse. “The bed,” it seemed to reporter Ulrich Schippke “has become a battleground.”
Alongside these ground-breaking statistics, the survey also showed that attitudes towards the so-called “marital duty” (eheliche Pflicht) were changing. Women across all surveyed categories (age, profession and religion) disagreed with the statement that as a part of marriage, women must be sexually available, whenever their husbands want.
For feminist activists campaigning against gender-based violence, this must have been heartening news. After protesting against women’s oppression and discrimination since the late 1960s and with the first domestic violence shelters only months away from opening in November 1976, attitudes towards violence against women were changing. Across a broad spectrum of West German society, women were taking a stand against patriarchal familial norms and in support of their right to self-determination.
And yet, the law protecting men’s sexual access to their wives would not change until 1997. Even more shockingly, members of the West German Bundestag burst out laughing when Green Party politician Petra Kelly asked whether rape in marriage should be criminalized in 1983.
Why is this? Why did it take so long for rape in marriage to be criminalized? And what does this tell us about women’s rights in the Federal Republic?
A Brief History of Rape Law in Germany
Building on legal traditions dating back to the early modern period, the Imperial Criminal Code of 1871 was the first codified law governing rape in a unified German state. Included under the section on “Crimes and Offences against Public Decency” (Verbrechen und Vergehen wider die Sittlichkeit) Paragraph 177 stated that
“Any man who forces a woman into extra-marital sexual intercourse through violence or through the threat of violence or death, or who engages in extra-marital sexual intercourse with a woman whom he has incapacitated or rendered unconscious for this purpose, will be punished with imprisonment in a Zuchthaus.”
“In the event of extenuating circumstances, a term of regular imprisonment of no less than one year will be applied instead.”
As the section title reveals, Paragraph 177 was built on a moral framework that privileged and affirmed normative ideas about marriage, women and men’s sexuality, and about deviance. Nestled between provisions criminalizing polygamy, incest, sex between men, and sexual assault, rape was defined as a problem not because it violated a woman’s rights or her physical autonomy, but because it offended the values and principles of German society. Paragraph 177 underscored patriarchal ideals of the sexually active/assertive man and the passive/shy/frigid woman, with only violence and marital status demarcating the line between legal and criminal. It propped up myths of the unknown violent sexual offender, while protecting married men’s sexual desires and their control over the private sphere.
Although feminist legal scholars and historians have systematically critiqued the patriarchal roots of rape law in various national contexts, in Germany, Paragraph 177 speaks to a long-standing sexual-moral order that enshrined patriarchy in law from the nineteenth century. But it was after 1945 that this order took on renewed importance. In the context of defeat and occupation, the home and family became a space through which the rehabilitation of West German men, if not also the German nation, was realized. Despite legislating equality between men and women in the 1949 Basic Law, shoring up the patriarchal, nuclear family unit as a site of stability and consistency became a key social and political goal under Konrad Adenauer.
For rape law, the intimate connection between German legal and liberal tradition, morality and patriarchy meant that Paragraph 177 changed very little over the first half of the twentieth century. Even after 1945, it remained embedded in conservative, Christian notions of public decency, morality, gender and sexuality – precisely those values that Adenauer and the Christian Democrats sought to maintain.
Indeed, this not only resulted in Paragraph 177 being upheld, but the court even doubled-down on women’s ‘marital duty’ in the postwar era. In 1966, the Federal Court of Justice determined that
“A wife does not fulfil her marital obligations simply by passively allowing intercourse to happen. If, due to her disposition or for other reasons that may include the inexperience of the married partners, she is unable to derive satisfaction from marital sexual relations, the institution of marriage still requires her to show marital affection and self-sacrifice and forbids her from any outward show of indifference or aversion.”
So not only were women still expected to be sexually available to their husbands, but they also had to act as if they enjoyed it.
But how would this change into the 1970s, the era most commonly associated with liberal social change in the Federal Republic of Germany?
Certainly, the new women’s movement of the late 1960s and 1970s indelibly shaped the conversation about gender-based and sexual violence in West Germany. In the 1970s, a global movement against male violence towards women emerged. Issues such as rape, domestic violence, alongside medical abuses and sexual harassment were all a key part of this activism that understood violence against women as a part of women’s oppression and evidence of the patriarchal structure of society.
In West Germany, feminists drew attention to various forms of violence against women and organized grassroots projects aimed at supporting women experiencing abuse throughout the 1970s. This was a pivotal moment for women’s activism, as a mass movement against the criminalization of abortion fought for women’s reproductive rights, and there was growing interest and activity on women’s rights and gender equality more broadly.
But this was also a key time for legal reform. Throughout the late 1960s and early 1970s, a series of reforms were introduced to update the West German criminal code. It was at this time that sex between men and adultery was decriminalized (in 1969) and unrestricted, first trimester abortion was briefly introduced (in 1975). Rape law, however, remained largely unchanged. Although the title of the section changed in 1973 from “Crimes and Offences against Public Decency” to “Offences against Sexual Self-Determination” (Straftaten gegen die sexuelle Selbstbestimmung) the actual content of the law remained the same. Rape was still permitted in marriage.
This lack of reform was even more marked given that throughout the 1970s and 1980s public and political support for gender violence initiatives grew. West Germany took an active part in the events of International Women’s Year and the subsequent conferences, and signed on to the Convention on the Elimination of All Forms of Discrimination against Women in 1980. And yet, the amendments to criminalize rape in marriage, perpetually proposed by both the Social Democrats and the Greens throughout the 1980s, found little success.
Although the legal status of marital rape was investigated throughout the 1980s, the fact remains that it was not until 1997 – twenty-five years since the great criminal code reform – that rape in marriage was criminalized. This was down to an independent, cross-party (SPD-Green) proposal, supported by women from the CDU and FDP, that brought the amendment to the Bundestag. Even then, it was not an issue that found an overwhelming consensus: although there were 470 votes in favour of the amendment, there were 138 against and 35 abstentions.
The fraught path of criminalizing rape in marriage suggests there is a line in the sand when it comes to protecting women’s rights. At the same time as rape in marriage was being laughed at in the Bundestag, the federal government were financing pilot projects aimed at supporting women experiencing male violence and even ratifying international conventions on gender discrimination. So while they were happy to support initiatives that responded to the consequences of violence, making legislative changes that would actually protect women was another matter altogether. Instead, women’s claims for sexual self-determination came up against deep-seated patriarchal ideals that, by upholding rape in marriage, served to deny them of their personhood and perpetuate norms of women as sexually passive and inherently maternal.
In this way, rape law reform also reveals the long shadow cast by the reconstruction and privileging of the patriarchal familial order after 1945 in West Germany, and inasmuch highlights the lingering effects of the politicization of the family under Hitler. That the family as a sacred, constitutionally-protected institution, should be a shelter from the state, where men should have the final say echoed throughout the postwar decades and had a tangible impact on women’s rights and gender equality.
Cite this article: Jane Freeland “Marital Rape and Women’s Rights in the Federal Republic of Germany”, in: History | Sexuality | Law, 06/05/2021, https://hsl.hypotheses.org/1685, (accessed on: Datum).
 Ulrich Schippke, “Mein Mann hat mich vergewaltigt,” Stern 17/1976, pp. 68-73; p. 68.
 See for example Paragraph 119 of the 1532 Constitutio Criminalis Carolina which made the rape of “married, widowed or virgin woman” punishable by death in the Holy Roman Empire. See discussion in Anke Meyer-Knees, Verführung und sexuelle Gewalt: Untersuchung zum medizinischen und juristischen Diskurs im 18. Jahrhundert (Tübingen: Stauffenberg Verlag, 1992).
 On the sexual-moral order see: Lynn Abrams and Elizabeth Harvey (eds), Gender Relations in German History: Power, Agency and Experience from the Sixteenth to the Twentieth Century (Durham, NC: Routledge, 1996); Ute Gerhard, Verhältnisse und Verhinderungen: Frauenarbeit, Familie und Rechte der Frauen im 19. Jahrhundert mit Dokumenten (Frankfurt/Main: Suhrkamp, 1978). For an overview of feminist critiques of rape law see: “Feminist Perspectives on Rape,” Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/feminism-rape/#Bib.
 On the tension between the constitutional guarantee of equality between men and women, and policies designed to protect men’s authority in the family, see Robert G. Moeller, Protecting Motherhood: Women and the Family in the Politics of Postwar West Germany (Berkeley: University of California Press, 1993).
 BGH, 02. 11. 1966-IV ZR 239/65.
 Isabel Kratzer, “Die Geschichte der Vergewaltigungstatbestandes – Aufbruch contra Konsivierung,” Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft, Vol. 93, No. 1 (2010): pp. 83-103.
 On other legislative attempts at criminalizing rape in marriage, see: Gerhard Schröder, “SPD strebt besseren Schutz für Opfer von Sexualdelikten an,” SPD informiert, February 17, 1984; Gesetzesantrag Fraktion der Grünen zum §177 StGB, A Rep 400 BRD 22.5 (2) 1980-2005, FFBIZ; Gesetzentwurf, der Fraktion Die Grünen. Entwurf eines Strafrechtsänderungsgesetzes (StrÄndG), Deutscher Bundestag, 10. Wahlperiode, November 2, 1983.
 The Max Planck Institute for Foreign and International Criminal Law was commissioned by the federal government in 1984 to research the criminalization of rape in marriage internationally.
 Led by the SPD’s Ulla Schmidt, the proposal called for the words ‘extra-marital’ to be removed from Paragraph 177. They also struck the “Widerspruchklausel,” a much-criticized provision that would have allowed women to revoke charges of rape against their husbands.