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Nein heißt jetzt wirklich Nein - Finally No means No

In this essay, Julia Bambach (4th year LLB Law and Business) analyses the development of the criminalisation of rape under German law.

Nein heißt jetzt wirklich Nein - Finally No means No

- Examining recent developments in German rape law


Finally, “no means no” in Germany after the Bundestag passed a new law redefining what constitutes rape in July 2016. By unanimous vote, German Parliament introduced new legislation broadening the definition of sex crimes to cover cases in which a victim withheld consent but did not physically fight back. Under the Bill, also known as the "No Means No" ("Nein heißt Nein") law, any form of non-consensual sex will now be punishable as a crime. Previously, only cases in which victims could show that they physically resisted their attackers were punishable under German law. Often criticised of lagging behind other jurisdictions, the change in German rape law has been welcomed by many. Others claim that the new legislation is only a first step and must be further innovated. This essay will examine the recent developments in German rape law by illustrating the changes made; the underlying causes prompting the developments; and the implications of this for future German criminal law.

 

The state of German rape law pre-reform

Germany’s rape law has often been criticised of being antiquated, which is reflected by the criminalisation of marital rape as late as 1997. [1] As rape is considered a criminal offence, the German criminal code, Strafgesetzbuch, contains all relevant provisions.[1] Section 177 of the German Criminal Code provides that sexual assault and rape are felonies punishable with imprisonment of one year or more. The coercion of the victim by force, by threat of imminent danger to life or limb, or by exploiting a situation in which the victim is unprotected and at the mercy of the offender is an essential element for criminal liability.  Each of these requirements necessitate coercion, which is defined as forcing the victim against his or her will to act or to refrain from acting in a certain way or to tolerate a certain action.[2]

Furthermore, section 177 of the German criminal code necessitated a need to prove coercion, the use of violence, the threat of danger to life or limb or taking advantage of a vulnerable position. If the victim has been paralysed by fear or did not resist enough, then it is often not considered as being submitted to coercion. For example, a victim is not regarded to have been in a vulnerable position when the rape took place in a house where the victim could have run away or called for help.[3] The courts have adopted a definition that is even more restrictive regarding the “vulnerable position”.[4] Accordingly, the victim must be objectively defenceless to the potential violence of the perpetrator. The subjective views of those affected, possibly crippling fear of impending rape, is often considered irrelevant; thereby neglecting that typical behavioural responses to sexual violence include being paralysed with fear and non-physical defence.[5] Moreover, the Federal Court of Justice held that merely being alone with another person or a surprising and [2] unanticipated sexual harassment does not fulfil the requirements of coercion and of “being unprotected and at the mercy of the offender.” [6]

 

Taking these requirements for criminal liability into consideration, a simple “no” was thus insufficient to find defendants guilty. In addition, the issue of consent had not been addressed in the provision regarding rape crimes. Thereby, the legislation failed to correspond with the Istanbul Convention - a Council of Europe Convention on preventing and fighting violence against women introduced in 2011. The Convention aims to protect women against all forms of violence and to prevent, prosecute, and eliminate violence against women and domestic violence.[7] Article 36 of the Convention obligates the parties to take the necessary legislative measures to ensure that engaging in any non-consensual act of a sexual nature is criminalised. The Convention requires signatories, including Germany, to penalise all non-consensual sexual acts, as consent to a sexual act must be given voluntarily as a result of the free will of the person. As it is further outlined in the Explanatory Report, prosecution of this offence requires a contextual assessment of the evidence “to establish on a case-by-case basis whether the victim has freely consented to the sexual act performed. Such an assessment must recognise the wide range of behavioural responses to sexual violence and rape which victims exhibit and shall not be based on assumptions of typical behaviour in such situations”.[8]

 

Failures of the previous legislation

As is the case around the world, sexual violence is largely a hidden phenomenon in Germany.[9] There are about 8000 reported sexual violence crimes annually in Germany; whilst the number of unreported cases is much higher - only 8 per cent are reported to the police.[10] Non-reporting of sexual violence has been attributed to three factors, acting singly or in concert, including victim fear; feelings of helplessness; the perceived powerlessness of police; and the threat of further victimization from the authorities. In addition, a study of 107 cases conducted in 2014 by the German association of women's counselling centres and rape crisis centres (BFF) demonstrated the inadequacy of this legislation in practice and its implications for victims.[11] In every case examined in this study, sexual assaults had been unambiguously committed against the victim's will, which had been communicated verbally to the perpetrator. As the law placed too much focus on whether the victim resisted, it failed to reflect real-life scenarios. This gap between the law and reality meant that for a broad majority of the cases examined, charges were not filed or there was no court conviction due to the high threshold requirement of evidence.[12] The legislation had thus created a gap in protection, essentially forsaking victims of rape who were not able to prove so-called active resistance.

This gap in protection was brought to light following the events of New Year’s Eve 2015 in Cologne. An estimated 1,000 women reported having been sexually assaulted by men operating in a seemingly coordinated way at Cologne’s main train station on New Year’s Eve. The attacks, which deeply shocked Germany, were mostly blamed on men of Arab and North African origin. The subsequent admission by the city’s police that most of the attackers would probably never be caught sparked outrage, further fuelling the debate about Germany’s willingness to accept a record number of refugees and migrants last year. In addition, hundreds of complaints of sexual violence were filed with the police after the attacks, but many could not be pursued in court due to a lack of evidence.

Another instance which drew public attention to the failures of Germany’s rape law, was the case of model and television personality Gina-Lisa Lohfink, who was fined after a court ruled she had falsely accused two men of rape. One of the two men she had accused was previously convicted for illegally sharing a so-called “sex video” online in which Lohfink appears naked, at times apparently semi-conscious or unconscious, while he and another man perform sexual acts on her. She clearly shouts “no” and “stop” several times. After the video was released, she accused the men of raping her but due to the legislative requirements stating that a simple “no” is not enough for culpability, the case was dropped by the prosecutor’s office. Instead, the prosecutor then decided that Lohfink had falsely testified and she, originally the victim, found herself on trial. This case, one of many instances where justice has been miscarried, is only one of many instances that lead one to the conclusion that the previous German rape law protects the perpetrator rather than the victim in a majority of cases.[13]

 

Drive for Reform

Over the past decades, women's rights groups and campaigners had been advocating for a legislative overhaul. Women’s rights groups and opposition lawmakers in Germany have been pushing over the past two years for legislation that would codify the principle of “no means no”, a significantly tougher stance for the country: the only one in Western Europe that had been lacking clear legislation against groping.[14]

Efforts to pass a draft Bill took on new urgency in the months after the series of assaults in Cologne resulting in an agreement by the German government to pass the draft bill in order to close gaps in the current criminal law relating to sexual offences.[15] The draft Act would amend section 179 of the German Criminal Code, which criminalizes the abuse of persons who are incapable of resistance due to mental or physical disabilities, and would from there on apply to all persons incapable of resistance to abuse due to special enumerated circumstances. In addition to the victim’s physical or psychological condition, these circumstances would include the victims being taken by surprise by commission of the crime and the victim’s fear of severe harm or adverse consequences were he or she to resist.

 

The sudden urgency and unprecedented public interest in the renewed reform efforts can be considered curious timing. Germany had continually ignored calls for the removal of physical resistance as a necessary element of a guilty verdict and failed to correspond to requirements set out in the Istanbul Convention as well as demands by the United Nations, which has long promoted an appropriate standard for sexual assault legislation. Only after the Cologne attacks, the reform changes were applied and previous opposition to the bill relaxed, while attitudes to sexual violence have changed as the majority of the German population approved the implementation of a new draft law.[16] Apparently, the incidents in Cologne had given the draft Bill the momentum so desperately needed, leading a prominent German journalist to lament in a widely discussed op-ed that German society only cares about sexual violence when perpetrated by foreigners or Germans of colour.[17]

 

State of German rape law post-reform

The new legislation, dubbed the "No means No law", is intended to cover the actual situations in which most attacks occur, by broadening the definition of sex crimes to cover cases in which a victim withheld consent but did not physically fight back. This includes cases in which the victim is taken by surprise, intimidated or threatened with other violence, for example in an abusive relationship. The reforms will allow prosecutors and courts to take into account physical, verbal and non-verbal signals from the victim when determining whether or not a rape occurred. Anyone convicted of sexual activity that goes against the "discernible will" (erkennbaren Willen) of the victim faces up to five years in prison. In addition, the new legislation classifies groping as a sex crime punishable by a two-year prison term or a fine, also lowering the bar for deporting foreign nationals who commit sexual offences.

Proposed by the conservative parliamentary group, a stipulation in the form of Paragraph 184j has also been added to the new legislation, which enables prosecution of anyone who at least tacitly accepts that a group that they are a part of commits crimes. Essentially, this makes it illegal to be part of a group committing assaults in a crowd rather than requiring individual proof that a specific person attacked a victim. This specific measure is intended to deter attacks such as those that occurred in Cologne, although the constitutionality of this clause is disputed.[18] 

 

Criticism
Hailed by some as a milestone, this change in law is expected to increase the number of victims who choose to press charges, reduce the number of criminal prosecutions that are shelved and ensure sexual assaults are properly punished.[19] As the will of the victim - and not coercion - constitutes the requirement for the prosecution of sexual assault, the new legislation establishes a paradigm shift in German criminal jurisprudence. Nevertheless, many campaigners view the new legislation as a first step that does not go far enough yet, with some expressing preference for heading towards a “Yes means Yes” approach, exemplified by a 2015 law passed in California[20] that makes the legal standard for sex affirmative verbal consent.

Another criticism refers to the addition of a clause to the new legislation that would make it easier to deport foreigners charged with sexual assault. It has been criticised as not being a relevant part of a law, which is supposedly focused on sexual violence crimes and not matters of deportation. In addition, another measure stipulated within the new legislation that enables the prosecution of anyone who at least tacitly accepts that crimes are committed by a group they are part of, has been criticised as unconstitutional. This refers back to the curious timing of the sudden enthusiasm for the reform in German criminal law. Many women's rights campaigners complained that the fight for women’s sexual self-determination was being exploited to generate hate towards foreigners in light of the politically contentious debate surrounding Germany’s ‘refugee crisis’. In accordance with this claim, critics have also alleged that the new law is an attempt to deal with that public outcry, rather than to seriously reform the law on rape and sexual violence.[21]

Moreover, the publicly appealing “No means No” tag line garners much attention; a far more complicated culture may constrain the effect of those crucial words,[22] which have finally been embedded in German criminal law. A key objective of the new legislation is to finally provide access to the system of justice that  survivors of sexual violence are entitled to. However, this cannot be done by merely providing a legal foundation, as many barriers will continue to exist.[23] It is an extremely traumatic experience for victims to ‘relive’ what happened to them. In most cases, there is no third party eye-witness and victim-blaming is still all too common, even in the judicial system.[24] For the most part, the survivor needs to convince others there was no ‘fault’ on their part, for what they were wearing or where they were walking, or for something else they did or did not do.[25] The only reason rape happens is because of what rapists do, yet it is still incredibly rare for perpetrators to be given full blame, or even to be stigmatised for their actions.[26] It seems that the justice system may yet remain ingrained with an understanding that a lack of consent is demonstrated through physically fighting back.

 

Conclusion

To conclude, the new legislation is generally an important and long overdue change within German criminal law. The updated law on rape and the introduction of the criminal offence of groping aims to rectify the failures of past legislation and seeks to finally grant victims of sexual violence access to justice. However noble the intended aims of this recent reform may be, it remains to be seen whether these efforts can actually bring about a successful outcome. It must be acknowledged that the justice system itself may yet remain ingrained with an understanding that a lack of consent is demonstrated through physically fighting back. In addition, the continued consideration of clothing worn, intoxication levels and previous sexual history of the victim when assessing the validity of a claim, continues to constitute an institutional barrier to proving sexual assault. These considerations amount to a host of “rape myths”, undermining the credibility of the victim’s claim and impacting how victims of sexual violence are perceived, both in society and in the courtroom.[27] As long as rape myths within society as well as the legal system are being perpetuated, a culture in which rape can be justified and even excused will persist.[28]

This is why a shift in perception across the whole of society seems to be a necessity and appears vital for the successful protection of victims. For the reform to flourish and achieve its objectives of bringing justice to survivors of sexual violence, the creation of a cultural and social environment, which welcomes this new approach, is crucial.[29] The recent reform of German rape law can therefore be considered a hopeful first step in changing attitudes and shifting perceptions of sexual violence so that victims receive the protection and justice they deserve.

 

 


 

 

[1] German Criminal Code, §177.

[2]  German Criminal Code, §§ 177 & 240.

[3]  BGHSt 51, 283 f.; BGH NStZ 2009, 263.

[4]  Landgericht Essen. (2012). Urteil vom 10.09.2012, Az. 25 KLs 10/12, Essen.

[5]  Koenig, A. et al., The Jurisprudence of Sexual Violence -  A Working Paper of the Sexual Violence & Accountability Project Human Rights Center University of California, Berkeley (May 2011), 16-19.

[6]  Landgericht Essen. (2012). Urteil vom 10.09.2012, Az. 25 KLs 10/12, Essen.

[7]  Council of Europe. (2011) Übereinkommen des Europarats zur Verhütung und Bekämpfung von Gewalt gegen Frauen und häuslicher Gewalt und erläuternder Bericht, Istanbul, 15.

[8]  Explanatory Report (2011), Point (192). 

[9]  Hagemann-White, C. (2001) European Research on the Prevalence of Violence Against Women, Violence Against Women, 7 (7), 732-759.

[10] Bundesministerium des Inneren. (2012). Polizeiliche Kriminalstatistik 2012, Berlin, p.4.

[11] Clemm, C. and Eckhardt, A., Fallanalyse zu bestehenden Schutzlücken in der Anwendung des deutschen Sexualstrafrechts bezüglich erwachsener Betroffener (Juli 2014).

[12] Bundesministeriums für Familie, Senioren, Frauen und Jugend, Lebenssituation, Sicherheit und Gesundheit von Frauen in Deutschland (2005) Eine repräsentative Untersuchung zu Gewalt gegen Frauen in Deutschland, Berlin, 180.

 

[14] Hagemann-White, C. (2001) European Research on the Prevalence of Violence Against Women, Violence Against Women, 7 (7), 732-759.

[15] Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zur Änderung des Strafgesetzbuches – Verbesserung des Schutzes der sexuellen Selbstbestimmung [Draft Act of the Federal Government, Draft Act to Amend the Criminal Code – Improvement in the Protection of Sexual Self-Determination] Mar. 16, 2016), Federal Ministry of Justice and Consumer Protection.

[16] http://www.dw.com/en/majority-of-germans-approve-of-no-means-no-rape-statutes/a-19337203

[18] Deutscher Bundestag -Parlamentsnachrichten, Nein heißt Nein« im Sexualstrafrecht (06.07.2016) https://www.bundestag.de/presse/hib/201607/-/434604.

[19] Clemm, C. and Eckhardt, A., Fallanalyse zu bestehenden Schutzlücken in der Anwendung des deutschen Sexualstrafrechts bezüglich erwachsener Betroffener (Juli 2014).

[20] www.bbc.co.uk/news/world-us-canada-29406138

[21] Deutsche Presse Agentur, Nein heißt Nein. Und was bedeutet das jetzt? (07.07.2016) http://www.spiegel.de/politik/deutschland/sexualstrafrecht-alles-was-sie-zu-nein-heisst-nein-wissen-muessen-a-1101658.html.

[22] Sanday, P.R. (1981) The Socio-Cultural Context of Rape: A Cross-Cultural Study, Journal of Social Issues, 37 (4), 5-27.

[23] McBarnet, D. (1981) Conviction Law, the State and the Construction of Justice, London: Macmillan.

[24] Polaschek, D.L.L., Ward, T. and Hudson, S.M. (1997) Rape and Rapists: Theory and Treatment, Clinical Psychology Review, 17 (2), 177-144.

[25] Lonsway, K.A. and Fitzgerald, L.F. (1994) Rape Myths: A Review, Psychology of Women Quarterly, 18, 133-164.

[26] Workman, J.E. and Orr, R.L. (1996) Clothing, sex of subject, and rape myth acceptance as factors affecting attributions about an incident of acquaintance rape, Clothing and Textiles Research Journal, 14 (4), 276-284.

[27] Schafran, L. H. (2015). Barriers to credibility: Understanding and countering rape myths, retrieved from the National Guard website:http://www.nationalguard.mil/Portals/31/Documents/J1/SAPR/SARCVATraining/Barriers_to_Credibility.pdf.

[28] J Conaghan and Y Russell (2014) Rape myths, law, and feminist research: myths about myths?, Feminist Legal Studies, 22 (2), 25-48.

[29] Home Office (2000) Setting the Boundaries: Reforming the law on sex offences (Volume 1), London: Home Office Communication Directorate.


 

 

 

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