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Germany: Overhaul of Criminal Law Relating to Sexual Offenses

(Apr. 11, 2016) On March 16, 2016, the German government agreed on a draft act to close gaps in the current criminal law relating to sexual offenses. (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] (Draft Act) (Mar. 16, 2016), Federal Ministry of Justice and Consumer Protection website.)

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 or to “a profound consciousness disorder.” (Strafgesetzbuch [StGB] [Criminal Code] (Nov. 13, 1998, as amended), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 3322, § 179, GERMAN LAWS ONLINE; German Criminal Code (as last amended Oct. 10, 2013), GERMAN LAWS ONLINE (unofficial English translation).) The amended norm would 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 victim’s 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. (Draft Act, art. 3, at 3.) The explanatory memorandum to this draft act elaborates that the proposed amendments would cover cases in which

  • there is no causality between the use of force or the threat of use of force and the sexual act;
  • the victim does not resist because he or she fears adverse consequences not involving a danger to life or limb;
  • the unprotected situation of the victim only exists subjectively; or
  • the perpetrator takes advantage of the element of surprise. (Id. at 11.)

Another purpose of the draft act is to implement the requirements of the 2011 Istanbul Convention that Germany has signed and intends to ratify. (Id. at 1.)  The Convention aims to protect women against all forms of violence and to prevent, prosecute, and eliminate violence against women and domestic violence. 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 criminalized. (Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Apr. 12, 2011), CETS No. 210, Council of Europe website.)

Current Legal Situation

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 alternatives of the criminal norm require 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. (German Criminal Code, §§ 177 & 240.)

The Federal Court of Justice held that merely being alone with another person or a surprising and not anticipated sexual harassment does not fulfill the requirements of coercion and of “being unprotected and at the mercy of the offender.” (Bundesgerichtshof [BGH] [Federal Court of Justice], 50 ENTSCHEIDUNGEN DES BUNDESGERICHTSHOFES IN STRAFSACHEN [BGHSt] [DECISIONS OF THE FEDERAL COURT OF JUSTICE IN CRIMINAL MATTERS] 359, 362, & 368.)

Next Procedural Steps 

The Bundesrat, the constitutional body through which the German states participate in the legislative process, is currently debating the draft act. The federal government will forward the draft act along with the comments of the Bundesrat to the German Bundestag (parliament) for discussion three weeks after submission to the Bundesrat.  (Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, art. 76, ¶ 2, sentence 3, GERMAN LAWS ONLINE (unofficial English translation).)

Related Developments

On March 17, 2016, the German Bundestag debated another, older draft act to amend the criminal law relating to sexual offenses. (Entwurf eines Gesetzes zur Änderung des Strafgesetzbuches zur Verbesserung des Schutzes vor sexueller Misshandlung und Vergewaltigung [Draft Act to Amend the Criminal Code to Improve Protection Against Sexual Abuse and Rape], DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE [BT-Drs.] 18/5384.)) The draft had been submitted by the parliamentary group Alliance ‘90/The Greens, but had not been scheduled for debate by the Committee on Legal Affairs of the German Bundestag for ten weeks. In such instances, the rules of procedure of the German Bundestag provide that the parliamentary group can force the Bundestag to debate the draft act. (Geschäftsordnung des Deutschen Bundestages [BTGO 1980] [Rules of Procedure of the German Bundestag], June 25, 1980, BGBl. I at 1237, as amended, § 62, ¶ 2, GERMAN LAWS ONLINE.)

The draft act of the Alliance ‘90/The Greens pursues an objective similar to that of the draft act submitted by the federal government. It would eliminate the requirement of coercion by force or threat of use of force and would criminalize situations in which the victim does not suspect an attack, is defenseless, or makes a refusal to consent to the sexual act known either verbally or through his or her behavior (e.g., by crying or stiffening).  (BT-Drs. 18/5384, supra, at 6.)