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Reforming sex crime law

Ben Knight
April 28, 2016

The Bundestag has debated a long-awaited reform of Germany's sex crime law, accelerated in the wake of the Cologne attacks. But while women's groups say it's inadequate and overdue, some lawyers think it's unnecessary.

Deutschland Hauptbahnhof Köln
Image: picture-alliance/dpa/M. Hitij

Germany is moving closer to reforming its old sex crime laws, making it easier to prosecute rapists and sex attackers, though Green and Left party politicians as well as women's groups argue that the reforms need to put more emphasis on the perpetrator rather than the victim.

Thursday's Bundestag debate on the matter found Social Democrat Justice Minister Heiko Maas open to a further tightening of the law. He told the chamber that he was "certainly ready" to discuss further regulations, and called for the changes to be brought in quickly.

But he also defended the draft law as it stood, giving public broadcaster ARD the following example: "If a woman somewhere on an isolated car park can't reach help and prefers to get the ordeal over as quickly as possible," then from now on it will be easier to secure a conviction.

Making consent explicit

The reforms are meant to criminalize acts where the perpetrator uses surprise or intimidation to exploit the victim. Currently, section 177 of Germany's criminal code offers three definitions of rape, as sexual coercion carried out:

1. by force;
2. by threat of imminent danger to life or limb; or
3. by exploiting a situation in which the victim is unprotected and at the mercy of the offender.

Campaigners have long criticized this formulation for not explicitly mentioning consent, allowing judges to interpret the law to mean that saying no is not enough to prove rape happened. Maas had already planned a reform of the law last year, but the sexual assaults at Cologne's central railway station on New Year's Eve increased political pressure to pass it quickly.

Heiko Maas Bundesjustizminister
Maas said he was open to further tightening of the lawImage: picture-alliance/dpa/K.Schindler

"The event of New Year's Eve in Cologne and other cities showed that it's easier to prosecute the theft of a mobile phone than a grope at someone's crotch," read a joint statement by women's groups affiliated with Germany's two governing parties - the Christian Democrats and the Social Democrats.

Not far enough

Many campaigners argue that even the new reform puts too much emphasis on the victims' actions.

"According to German law, it is not a crime when sexual acts have been carried out against the express will of a person. The new draft law from the government does not change anything," read a statement released on Tuesday by the German association of rape crisis and women's counseling centers (BFF). "A clear 'no' is still not enough."

"It is no longer acceptable that the victims of sexual assault and rape have to justify their actions," BFF spokeswoman Katja Grieger said. "In future, culpability must depend solely on the actions of the perpetrator."

Deutscher Bundestag Innenansicht
The Bundestag debated the reform on ThursdayImage: DW/P.Böll

This would bring Germany in line with the convention on preventing violence against women adopted by the Council of Europe in Istanbul in 2011, which demands that all non-consensual sexual acts be criminalized. Germany has signed the convention but so far failed to ratify it.

But the consensus that Germany needs the reform is not universal. Last August, the Bundestag held a hearing on the proposed changes, and Thomas Fischer, presiding judge of Germany's Federal Court of Justice, argued that no reform was necessary, on the grounds that most examples given by reformers were covered by the current sex crime and rape laws.

Similarly, Ulrich Dost-Roxin, a Berlin lawyer who says he has represented both sex crime perpetrators and victims, also says that there needs to be better justification to change the current law. Groping, which many women said happened to them in Cologne, was already covered by the "sexual offense" laws.

"If the number of sex crimes had risen I would see a need for change. But in the past 25 or 30 years there hasn't been any rise," he told DW. "All I see are the political actions of a government trying, one year before a general election, to reach for an issue to satisfy the masses. But objectively seen, I personally don't see any need for action."

"This new ruling is not practical, when it comes to providing evidence," he argued. "Now only claiming, 'I didn't want it' will be sufficient. How is the other person supposed to recognize that?"