EXTRACTS FROM THE FINAL PLEA FOR
DEFENDANT GEBHARDT[[12]]
The Agreement by the Experimental Persons as Legal Justification
I shall now deal with the individual reasons for the exclusion of injustice and guilt, which according to the result of the evidence preclude the culpability of the defendant’s behavior. I am hereby taking into consideration that the assumption of only one of the reasons for the exclusion of punishment which we shall now deal with suffices to justify the defendant’s behavior and to exonerate him of the offense in the sense of a personal culpability because of his commission or omission. The individual reasons for the exclusion of culpability are discussed without taking into consideration whether the examination of any further similar reasons is superfluous, since the assumption of another reason for the exclusion of culpability suffices to secure the intended success. Evidence has proved that the experiments for testing sulfanilamides were carried out, to begin with, on fifteen professional male criminals who had been sentenced to death. Had they survived the experiments, they would have been granted a pardon therefor. Considering that this part of the experiment is not a subject of the indictment, I need not go into detail about it.
To the second and third group (the sulfanilamide experiments) belonged as experimental subjects members of the Polish Resistance Movement, who, in view of their activity in this illegal movement, had been sentenced to death by German courts martial.
It is a principle of German criminal law that in any case the consent of the offender precludes the illegality of the action. This principle is not only found in German law but is an established part of practically all legal systems. Consequently, we have to examine the question whether the experimental subjects gave their consent to the experiments. When examining the question whether legally effective consent had been given, it will not matter so much whether the experimental subjects expressly declared their consent. However, if generally acknowledged principles are applied, one may presume that they expressed their consent in some obvious manner. It is clear that consent could also have been given tacitly and by conclusive action.
However, it is true that all the female witnesses examined in court testified that they did not give their consent to the experiments. The Tribunal, in evaluating these facts, will have to take into consideration that these witnesses were in a special position at that time, as they also are today. It stands to reason that under these circumstances many things may appear different to them today from the way they actually happened five years ago. It might be true that the experimental subjects did not give their actual consent to these experiments. It might even be true that they were not asked before the experiments whether they consented to the experiments. Nevertheless this would not exclude the possibility that, considering their position at that time and being certain that they could not escape execution in any other way, they nevertheless did consent to the experiments, however tacitly. This supposition would coincide with the fact that, for instance, none of the experimental subjects had ever made any complaint or mentioned to the defendant Fischer, who had regularly changed the dressings, that they did not consent to the experiments.
The Presumed Consent of the Experimental Subjects as
Legal Justification
The illegality of an action is excluded not only if the injured person agreed either actually or tacitly, but if there could have been a possible consent. These are the cases where the consent of the injured person could be expected normally, but where for some reason or another such a consent was actually not given. Numerous attempts have been made in legal literature and also in judicial decisions to do justice to this situation which so often occurs in practice. Not all of these theories need to be discussed since the decisive points of view have by now been clarified. At first an attempt was made to settle this question by applying the law referring to unauthorized acting for and on behalf of another person. Serious objections were raised against this transfer of concepts of civil law to criminal law. The criminal idea of consent is to be extended instead to include so-called supposed consent. I understand this as an objective judicial judgment based on probabilities, namely, that the person concerned would have given his consent to the action from his personal point of view if he had fully known and realized the situation. Wherever such a judgment could be applied, it should have the same effect as the judicial finding of an actual consent.