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Just apply the law

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Johannes Beck
January 15, 2016

Ever since a large number of women were sexually harassed and robbed on New Year's Eve in Cologne, a debate on tougher laws has been raging in Germany. But, writes Johannes Beck, better enforcement would suffice.

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Image: Imago

In Germany, ministers, members of parliament from almost all political parties and many commentators on social networks all agree: the state must take rigorous steps and demonstrate resolve so that the New Year's Eve sexual harassment episodes in Cologne will not be repeated.

Resolve seems to be synonymous with new and tougher laws. But in almost all cases, existing laws are sufficient to punish perpetrators more severely or, in cases of repeat offenders or serious offenses, to deport them if they are foreigners, asylum seekers or refugees.

There is a serious gap in Germany's criminal code only with regard to sexual violence. According to current laws, rape is only punishable if the victims defend themselves, or if the perpetrator threatens to kill the victim. Anyone who does not actively resist rape out of fear will have to face the prospect that the rapist will be acquitted.

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DW's Johannes BeckImage: DW/P. Henriksen

Otherwise, new or tougher legislation is not required. Actually, the German justice system must change its mentality. There are three points that can be improved:

1. Handing down tougher penalties

In recent decades, many judges have focused on the rehabilitation of offenders and often passed more lenient sentences than called for in the existing penal code. Here is an example from the recent past: on January 5, the local court of Cologne sentenced 18- and 19-year-old pickpockets from Morocco to only one week of juvenile detention.

Taking a tougher approach would pose no difficulties. According to current laws, theft is punishable by a prison term of up to five years. In particularly serious cases, such as organized robbery, a sentence of up to 10 years in prison can be imposed.

In cases of sexual assault, like touching breasts or the genital area inappropriately, prison sentences of six months to five years may be imposed.

And by the way, it is possible to deport culpable asylum seekers who have received a minimum sentence of three years' imprisonment without parole. Hence, not a single law needs to be changed in order to deport gangs who abuse German asylum law and work as professional thieves or harass women. The only exception, however, is deportation to war zones or if the threat of torture exists.

2. Juvenile law for young people should be an exception and not the rule

At the discretion of the courts, young people between the ages of 18 and 21 can be sentenced either under regular criminal law or under the more lenient juvenile justice system in Germany. In the majority of cases, German judges apply the juvenile penal code to cases of youth crime.

3. No more suspended sentences for repeat offenders

Sentences may be suspended so that offenders can serve a period of probation if it is expected that the offender has understood the verdict as a warning and will refrain from engaging in criminal activities in the future.

Nevertheless, German judges repeatedly put serial offenders on probation. Normally, if the threat of punishment has not deterred the perpetrators from committing a new crime, a new probation period is supposed to be ruled out.

If serial offenders are repeatedly released on probation, then the verdict does not work as a deterrent and the situation becomes extremely frustrating for the police.

Police sole scapegoat

So far the police have been criticized the most for the crimes in Cologne on New Year's Eve. Yet the police are only one of the law enforcement authorities – and due to staff cuts in recent years, the police force has been weakened in part.

If crime problems are to be solved for the long term, then prosecutors and courts must play their part as well. Many offenders may even feel encouraged by lenient interpretations of existing laws.

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