Sexual Offenses

by - January 17, 2016

On New Year's Eve 2015 / 2016 about 40 men sexually assaulted and robbed women in front of the Cologne Central Station. So far, 379 women have filed charges1. Two of them claim to have been raped2.

In this particular post I will not talk about the origin of the men or refugee policy in general. However, I may address this in a later post. This one is just about sexual assault, how it is defined and how it is punished in Germany. The reference (occuring later) could be seen as cherry-picking, nonetheless I did that intentionally to create a contrast and give the different penalties a subtext. Due to a lack of time, I also did not research if and how the offenses are charged.

According to various online newspapers, this is what happened on New Year's Eve at the station: after a group of approximately 1000 people formed in front of the building showing violent behaviour, some of them touched women and stole their phones and purses. A few newspapers suggest that the touching was meant to distract from the robberies. One woman described being in the crowd as 'running the gauntlet'3.

After the events in Cologne, politicians have talked about a stricter penalty for sexual assault. These are current definitions and penalties in Germany:

(As important later on) sexual acts: there is no clear definition im Strafgesetzbuch, but taking other laws under consideration it can be defined as actions that are aimed at the person's sex and involve the person's own or another person's body
showing a child pornographic material therefore is not defined as a sexual act
if an act is sexual or not is objectively decided (not by the victim)4

(As important later on) consent: two or more persons agreeing upon the same thing in the same sense5
the Wiki page for consent exists in only 6 languages, the German page did not include a definition

sexual harassment: a form of assault aimed at the victim's sex, this may be sexist remarks or actions and physical approximations with or without promises or threats6
sexual harassment is only punishable if 'special circumstances show an insulting nature'
the victim is only allowed self-defence while the offender is touching the victim, if the offender is hit by the victim afterwards (if the victim did not have to fear another harassment), the former victim can be punished for mayhem7
For reference: In India, 'sexual harassment is an expressed offence and can be punished with up to three years of imprisonment and or with fine'8.

sexual assault: sexual acts with minors or adults that are incapable of resistence (meaning they are not able to form or express the will to resist)9
the German law protects the right of sexual self-determination which is violated if sexual acts take place without or against the victim's will (this also applies if the victim is incapable of resistence or the victim's apparent consent is induced by its special relationship to the offender)10
if the offender recklessly causes the victim's death, the offender can be punished with up to ten years of imprisonment11
sexual assault is punished differently according to the situation, which I will not define further in this post
since sex itself is considered a sexual action in Germany, what is defined as 'rape' in other countries (e.g. South Africa12) can be considered sexual assault in Germany

sexuelle Nötigung / rape: in Germany, rape counts as a severe case of sexuelle Nötigung (this is a different thing (in law) than sexual assault, however, both are translated in English with sexual assault)
sexuelle Nötigung are sexual actions against the victim's will13 (apart from the victim not being incapable of resistence, there does not seem to be a difference to sexual assault)
rape occurs if a person is forced against their will - meaning there is an imminent threat to limb or life or the offender abuses a situation in which the victim is defenseless against the offender's actions - to have sex (vaginal, oral or anal penetration) or to do other very humiliating sexual actions that are connected to the body's penetration14
I could not find a definition of very humiliating actions, so I guess it depends on the judge's personal opinion
sexuelle Nötigung has to be punished with at least one year and no more than five years of imprisonment apart from less severe cases that can be punished with only six months15
if the actions are extremely humiliating (again, there is no definition), especially if they are connected to the body's penetration (rape) or if there is more than one offender it has to be punished with at least two years of imprisonment15
it has to be punished with at least three years and no more than ten years of imprisonment apart from less severe cases that can be punished with only one year if the offender has a tool or weapon with them helping to force the victim to do said sexual actions or if the crime results in the risk of serious damage to the victim's health15 (I could only find a definition for severe mayhem, which does include psychological damages16, meaning that depression, anxiety or other similar illnesses often occuring after being raped should fall under this law. Considering that, almost every rape should not be punished with less than three years of imprisonment)
it has to be punished with at least five years and no more than ten years of imprisonment apart from less severe cases that can be punished with only one year if the offender uses a dangerous tool or weapon or severely physically mistreats (I suppose the definition for severe mayhem applies here too, in this case meaning: losing vision, hearing or the ability to speak; losing / permanently not being able to use an important limb; permanently being disfigured or suffering of infirmity, paralysis, mental illnesses or disability16the victim or endangers the victim's life15

In conclusion: In Germany rape only occurs if the rapist threatened or harmed its victim. If the victim said 'no' or simply did not consent to the sexual actions, it does not fall under the definition of sexuelle Nötigung, which means that a lot of (informally-called) rapists probably are not sentenced or 'only' sentenced for sexual assault.

There is a study claiming that only 8.4% of accused rapists have been sentenced in Germany in 201217. However, the study does not give any background information on its data and was published by the controversial Dr. Christian Pfeiffer, so I would not trust these numbers too much. I could not find any other statistics on the matter.

9 and

You May Also Like