The Nazi murder law that still exists
- 6 February 2014
- From the section Magazine
The long arm of Nazi law reaches down even to our own times. The Third Reich might have been destroyed but its legislation on murder remains in force. Some of Germany's most eminent lawyers say it perpetuates injustice, and must be scrubbed out.
A surviving statute from 1941 means that women who kill their abusive husbands are more likely to be jailed for murder than husbands who beat their wives to death.
According to the German Association of Lawyers, the Nazis decided that a murderer was someone who killed "treacherously" or "sneakily" - "heimtueckisch" is the word in the law and it remains there today.
This means that a man who beats his wife over many years, finally killing her, is less likely to be convicted of murder, with a mandatory life sentence, than to be convicted of manslaughter, which may mean only five years in jail. The argument is that there was nothing "sneaky" or "treacherous" about the killing - it was frontal and direct and might have been expected.
Dr Stefan Koenig, a Berlin defence lawyer who chairs the Association of Lawyers' penal committee, says the Nazis defined murder in the light of their belief that some people were inherently weak-minded. It was about defining a murderer as someone treacherous rather than looking at the circumstances of each individual crime.
East Germany had a different law, closer to the idea in the UK and many other countries, that murder was about an intention to kill or cause serious injury. But with the unification of Germany in 1990, the law of West Germany became the law of the land.
The Nazi law favoured - and still favours - the strong who murder the weak, Koenig argues.
"In the penal code concerning murder, somebody is guilty of murder but not manslaughter if he abuses the victim's defencelessness, abusing the fact that the victim is not aware of any attack," he says.
But this is precisely how many women in abusive relationships end up killing their partner, he points out.
"If the wife who is much weaker than her aggressor has no other chance than to find a moment when he is not aware of any attack and then kills him - for example, from behind with a knife or with another instrument or putting poison in his meals - she will be condemned as a murderer and that means a life sentence."
Statistical studies confirm the pattern Koenig has observed from his own experience.
"I found that battered women were more often convicted of murder than violent men," the author of one such study, Prof Dagmar Oberlies, wrote. "Women who suffered violence for many years premeditated the killing of their partner. Violent men, who did not have to fear anything, simply battered their wives until they were found dead."
Lawyers like Koenig, who want the law changed to bring it into line with countries such as the UK and US, cite the case of Marianne Bachmeier.
On 6 March 1981, she took a gun into the court where the killer of her seven-year-old daughter was standing trial. She went up to him and shot him. When she had done so, she said: "Hopefully, he's dead." He was. She then lowered her gun, without any attempt to flee.
The German legal system decided that this could not be manslaughter, despite the trauma caused to Bachmeier by the death and abuse of her daughter. It had to be murder because the victim couldn't have expected the attack - he was, after all, in a court room.
There was a national uproar. Programmes were aired with the title "I'd have shot him too". In the end, but only after four weeks of convoluted legal argument, the murder charge was dropped but the principle still stands - killing a person who doesn't expect it must be murder.
Advocates of a change in the law also cite another controversial case.
In 2001, one Armin Meiwes posted an advert on the Cannibal Cafe website for a "well-built 18 to 30-year-old to be slaughtered and then consumed".
Many responded but only one didn't back out - Bernd Juergen Armando Brandes, an engineer from Berlin. The two met on 21 March and, true to his word, Meiwes killed Brandes and ate parts of him. None of this is in dispute. A video was made. Meiwes fried the victim's penis in butter with salt, pepper, wine and garlic.
The killer's defence was that his victim had consented to the death. The law accepted that it couldn't be murder - since the victim had consented to his death there couldn't be anything "treacherous" or "sneaky" about the killing. Meiwes was sentenced to eight years in prison for manslaughter.
Again there was uproar, with much arguing of the fine points by lawyers, and a retrial was ordered. The second court decided that it was, indeed, murder. There may have been no sneakiness involved but Meiwes had acted to satisfy his sexual depravity - another clause in the Nazi law which distinguishes murder from manslaughter.
He remains in prison. For that he can thank the fact that not all Nazi law continues. Most was repealed - including the death penalty.