Supreme Court Decision on the Nuremberg Race Laws
December 9, 1936
In the Name of the German People
(Translated from Bundesarchiv Koblenz, Record Group R22, File 50.)
The Great Senate for Criminal Cases of the Supreme Court in its session of December 9, 1936, in which the following participated:
The President of the Supreme Court Dr. Bumke as presiding judge
The Vice President of the Supreme Court Bruner
Senate President Dr. Witt
Justices Schmitz, Dr. Titel, Niethammer, Raestrup, Vogt, Dr. Hoffmann, Dr. Schultze
in the appeal of the State's Attorney under Article 137, Subsection 2, of the Court Organization Act has decided the following: The term “sexual relations” in the context of the Blood Protection Laws does not include every kind of illicit sexual action [Unzucht], but is also not restricted to sexual intercourse alone. It includes the entire range of natural and unnatural sexual relations that, in addition to sexual intercourse, include all other sexual activities with a member of the opposite sex that according to the nature of the activities are intended to serve as a substitute for sexual intercourse in satisfying the sexual needs of a partner.
The question of law, which is to be decided by the Great Senate under Article 137, Subsection 2, of the Court Organization Act upon the appeal of the State's Attorney for the First Criminal Senate [of the Supreme Court] in two pending cases, is posed as follows:
Whether the term “sexual relations” in the context of Article 11 of the first Ordinance for the Implementation of the Law for the Protection of German Blood and German Honor of November 14, 1935 (Reichsgesetzblatt I, page 1334) is to be understood as referring only to intercourse, acts similar to intercourse, or all illicit sexual acts.
The requirement of Article 2 of the Law for the Protection of German Blood and German Honor, which forbids extramarital relations between Jews and citizens of German or related blood, is elaborated upon in Article 11 of the first Ordinance for the Implementation of the Law to the extent that extramarital relations as defined here means only sexual relations. What is to be understood by the term “sexual relations” is left for the courts to decide.
“Sexual relations” is not to be made equivalent to all illicit sexual acts. If the legislator had intended to encompass all illicit sexual acts in the prohibition then he would have chosen to include in the wording of the law the word Unzucht [illicit sexual acts], which has long had clear and specific definition in jurisprudence. The term Unzucht encompasses much broader, and even one-sided, acts of a sexual nature that by no means could be labeled “sexual relations.”
Additionally one has to look at the law as a whole in the interpretation of Article 2. The proscription against marriage (Article 1) and the proscription against employment (Article 3) clearly show that the intent of the legislator is to secure the maintenance of the purity of German blood through general proscriptions independent of the special circumstances involved in individual cases. The proscription against marriage is true even in those cases where both parties have ruled out the possibility of children resulting from the union; the proscription against employment is true even if in individual cases the Jewish member of a household, either because of age or illness, cannot be expected to make sexual advances. The comparison with these provisions leads to the conclusion that the provisions of Article 2 are valid not only in those cases involving extramarital sexual relations which result in pregnancy or which could have resulted in pregnancy.
Other difficulties argue against such a narrow definition equating “sexual relations” with “intercourse.” Such a definition would pose nearly insurmountable difficulties for the courts in obtaining evidence and force the discussion of the most delicate questions.
A wider interpretation is also required here because the provisions of the law serve not only to protect German blood but also to protect German honor. This requires that intercourse and such sexual activities-both actions and tolerations-between Jews and citizens of German or related blood that serve to satisfy the sexual urges of one party in a way other than through completion of intercourse be proscribed.
[Signed] Bumke Bruner Witt Schmitz Tittel
Niethammer Raestrup Vogt Hoffmann Schultze