172 centimeters tall, brown eyes and chestnut hair: these biometric markers noted by the French police in the spring of 1968, now kept on a yellowed piece of paper preserved by the archives of the Fresnes prison in Créteil, sketch the portrait of a man far from unknown. These are the traits of one Rainer Werner Fassbinder.
On Friday, May 3, 1968, the young man was arrested in Paris in a steam bath (today, we would call it a sauna), 30 rue de Penthièvre, in the 8th arrondissement, steps away from the Champs-Élysées and boulevard Haussmann in the bourgeois neighborhoods in the western part of the city. With him, the vice squad, the police department investigating prostitution and other so-called “moral” questions, rounded up a certain Peter Gray, an American born in Vienna in 1921. Both were accused of public indecency, a crime that appeared with the Penal Code of 1810 and targeted sexual acts on the grounds of their alleged publicness.
At 22 years old, Fassbinder was an actor and directed an avant-garde experimental theater troupe in Munich, Action Theater. He was not yet famous as a prolific and scandalous filmmaker, one of the main figures of New German Cinema; his first feature-length film, Love Is Colder Than Death, would be completed the next year. He came to Paris, staying in a hotel in the rue du Pélican, a tiny street by the Palais-Royal.
After a night of imprisonment, he and his partner in misfortune were presented on Saturday, May 4, before the 10th chamber of the correctional tribunal of Paris. Describing the facts of the case in order to specify the crime, the verdict noted that the two men “were surprised in flagrante delicto (…) Gray masturbating Fassbinder, then embraced and locked arms.” They were condemned to a month in prison. Only Gray appealed, and his sentence was confirmed in December 1968.
Though it passes for extraordinary when the name of the condemned is Fassbinder, the sentence is nonetheless, for the 1960s, common and unremarkable. In France, unlike in Germany (thanks to Paragraph 175) and in England (where the act of “gross indecency between men” had been outlawed since 1885), homosexuality was never a crime unto itself. This did not prevent forceful legal repression. Homosexuality was explicitly mentioned in the penal code from 1942 to 1982 only: the law in question prescribed a higher age of consent for homosexual relations, in effect creating a sexual majority specific to homosexuality (first 21 years, then 18, even though it was 13 and then 15 for heterosexual relations)—not unlike the state of affairs in Germany after the partial decriminalizations of 1968 in East Germany and 1969 in West Germany. Having been introduced by the Vichy regime and kept after the Liberation in 1945, the law was repealed in 1982 after the election of François Mitterrand to the presidency and in the wake of the mobilization of the gay rights movement.