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'Milestone' for German sexual offense law

Naomi Conrad / jsJuly 7, 2016

German law currently says sex is only punishable as rape when a victim physically attempts to fight off an aggressor. That is about to change, and it's about time, many observers have said.

Symbolbild Gewalt gegen Frauen
Image: Fotolia/Miriam Dörr

Christina Clemm knows many of the women who bring their cases to her don't stand a chance of winning in court: Women who were sexually harassed on the train; who had men put their hands up their shirts; grab their breasts or rub their behinds.

Or women like the one who let a friend stay the night after a party because he missed the last train home. That particular woman told Clemm, a lawyer who specializes in criminal law, that she was dizzy and that her friend began "fumbling around with me," and despite repeated objections "put his finger in my vagina."

The case was recently thrown out as the court decided that the young woman had "not put up resistance."

Symbolbild Sexismus Debatte
'No means no' isn't currently the law in GermanyImage: dapd

Property better protected than sexual self-determination?

German law currently holds that rape occurs only when a victim physically protests and the perpetrator threatens, or uses, violence to have sex. Current law stipulates that sex it is not rape if the victim pleads for sexual activity to stop or even cries. Groping, grabbing a person's breasts, crotch or behind, is not even a punishable crime at the moment. That's led lawyers and women's rights activists to point out that property is better protected in Germany than sexual self-determination.

For the women, Clemm said, the experience of such attacks is "horrible" and the women who come to her often question how such unwanted sexual assaults can go unpunished. The majority of Germans have said they want the country's sexual offense law changed.

That is why women's rights activists have long been fighting for the reform of laws governing sexual offenses in Germany. They argue that victims of sexual aggression are often in shock, might not physically defend themselves because they are afraid of violence or fear that their resistance will only make the situation worse.

It's a legal situation Kristina Lunz said is "medieval." She is a young and eloquent internet activist and the co-initiator of the "No Means No" campaign. She herself has friends that have been raped but never pressed charges.

Kristina Lunz, Internetaktivistin
Lunz: German sexual offense law is "medieval."Image: privat

"They assume that there is no point, because they will always be confronted with the question: Why didn't you defend yourself?" she said.

That fact frustrates her, because Germany signed the Istanbul Convention making all non-consensual sexual activity a crime. A principle that is often paraphrased as "no means no." Germany, despite being a signatory, has never ratified the Convention.

Cologne as turning point

Last year, the German Justice Ministry drew up a draft law, but according to Eva Högl, deputy chair of the SPD parliamentary group in German parliament, it was "a thorn in the side" of many parliamentarians.

But then came New Year's Eve in Cologne - and the resistance of her mostly male colleagues melted away. In Cologne, a large number of men, many of whom eyewitnesses said were of North African descent, clustered together in groups and sexually harassed women - in addition to groping and robbing them, charges of rape were also brought up in at least two cases. In the aftermath, heated debates about religion, countries of origin and racism ensued. Laws governing sexual offenses also moved into the spotlight.

Hauptbahnhof Köln Sylvester Ausschreitungen Menschenmassen
Mass sexual assaults in Cologne changed how some regarded the crimeImage: Getty Images/AFP/M. Böhm

Suddenly things began to moving very quickly: The draft law from the Justice Ministry made it to the cabinet by March. Still, many groups said the proposal did not go far enough because the "no means no" principle was not explicitly anchored in the law. Further discussions followed, until the coalition agreed upon the proposal that is to be voted upon in the Bundestag, Germany's lower house of parliament, on Thursday. One caveat is that the SPD has asked that the Bundesrat, the upper house, also discuss the law, which will not happen until after the summer recess.

'Milestone and paradigm shift'

The law, a visibly proud Högl said, is "a milestone" in Germany - a country in which marital rape was not even punishable until the late 1990s. As soon as the new law is passed, the rule will be: Any person who ignores the "obvious will" of a victim can face up to five years in prison. A spoken "no" has to mean no as well. Moreover, aggressive groping as well as sexual attacks initiated by groups - a direct result of the Cologne incident - will be defined as criminal sexual offenses.

All of these changes were enthusiastically greeted by groups that have fought for legal reforms, such as the victims' advocacy group Weisser Ring (White Ring) and the German Women Lawyers Association (djb).

Dagmar Freudenberg spoke of a "paradigm shift" in criminal justice as pertains to sexual offenses. Yet, Freudenberg, who has long worked as a state prosecutor dealing with sexual violence and is now works for victim protection, does not believe that the new law will automatically result in more convictions.

According to Weisser Ring, only about 6 percent of all sex crimes are ever reported. Freudenberg said she does not believe that the new law will change that, "It will depend on the willingness of victims, who are often afraid to go to court, to report such offenses."

Many victims feel shame in talking about such attacks, and others do not want to have to relive the traumatic experience in a courtroom. Freudenberg added that the body of evidence in such cases, which often take place with no witnesses present, also makes it very difficult to get convictions, "It is often one person's word against another's."

Yet for some, the reforms go too far: Clemm said she thinks that the threat of a two-year prison sentence for a non-violent rape is too harsh. She finds it problematic because the courts rarely allow probation in such cases. She finds the linkage to residence laws, wherein after conviction a perpetrator can be more quickly deported, to be wrong as well saying, "That certainly won't help a single victim."

Still, she too, is very pleased about the "paradigm shift" that the law represents: She will soon be able to tell many of her clients that they may yet have a chance in court.