(Oct. 3, 2016) On September 23, 2016, the German Bundesrat, the constitutional body through which the German states participate in the legislative process, passed an amendment to the German Criminal Code that expands criminal liability relating to sexual assault, rape, and sexual harassment in order to close the existing liability gaps. (Gesetz zur Änderung des Strafgesetzbuches – Verbesserung des Schutzes der sexuellen Selbstbestimmung [Act to Amend the Criminal Code – Improvement in the Protection of Sexual Self-Determination] (Act to Amend the Criminal Code) (Sept. 2, 2016), Bundesrat website.) The draft act of the Federal Government and the rationale of the reform had been intensely debated in the preceding months. (Jenny Gesley, Overhaul of Criminal Law Relating to Sexual Offenses, GLOBAL LEGAL MONITOR (Apr. 11, 2016).) The final version of the Act, which had been adopted by the German Bundestag (parliament) on September 9, 2016, differs from the draft and provides for the following amendments.
Central to the reform is the amendment of section 177 of the German Criminal Code that governs criminal liability for sexual assault and rape. (Strafgesetzbuch [StGB] [Criminal Code], Nov. 13, 1998, as amended, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 3322, GERMAN LAWS ONLINE; German Criminal Code (as last amended Oct. 10, 2013), GERMAN LAWS ONLINE (unofficial English translation).) Under the amended paragraph 1 of section 177 of the Criminal Code, any person who, against the apparent will of another person, engages in sexual activity with that person, causes that person to engage in sexual activity with him/her, or makes that person actively engage in sexual acts with or tolerate sexual acts from a third person is punishable by a term of imprisonment ranging from six months to five years. (Act to Amend the Criminal Code, art. 1, no. 6.) Accordingly, all sexual activities that happen against the apparent will of another person can be prosecuted as sexual assault.
When an opposing will of the person is not apparent, the offender incurs the same penalty, if the offender:
1) exploits the fact that the person is not able to form or express an opposing will;
2) exploits the fact that the person is significantly impaired in his/her ability to form or express a will due to a physical or mental condition, unless the offender is assured of the consent of this person;
3) exploits an element of surprise;
4) exploits a situation in which the victim is threatened with serious harm in case of resistance; or
5) coerces the person to actively engage in or tolerate sexual acts by threatening serious harm. (Id.)
The amendment to section 177 of the Criminal Code closes a gap in criminal liability that arose from a narrow wording and construction of the former provision. Previously the Code provided that a person was criminally liable for sexual assault or rape if he/she coerced another person by force, by threat of imminent danger to life or limb, or by exploiting a situation in which the victim was unprotected and at the mercy of the offender. Coercion has been dropped as an essential element for criminal liability, but remains as an aggravating factor. (StGB, § 177; Act to Amend the Criminal Code, art. 1, no. 6, § 177, ¶ 5.)
The Act also provides for aggravated sentences if the following additional conditions are fulfilled. The offender may be sentenced to imprisonment for at least one year if the inability of the victim to form or express an opposing will is due to a disease or disability. (Act to Amend the Criminal Code, art. 1 no. 6; StGB, § 177 ¶ 4.) The minimum sentence of one year will also be imposed if the offender uses force, threatens the victim with imminent danger to life or limb, or exploits a situation in which the victim is defenseless. (Act to Amend the Criminal Code, art. 1 no. 6; StGB, § 177, ¶ 5.)
The amending legislation also criminalizes acts of sexual harassment by adding section 184i to the Criminal Code. A person who touches another person in a sexual manner and thereby harasses that person will be liable to imprisonment not exceeding two years or to a fine. (Act to Amend the Criminal Code, art. 1 no. 6; StGB, § 184i ¶ 1.) An aggravated sentence ranging from five months to five years is imposed if the crime is committed jointly by several offenders. (Act to Amend the Criminal Code, art. 1 no. 6; StGB, § 184i ¶ 2.) If an offense under section 177 or section 184i of the Code is committed by a group of persons who crowd the victim in order to facilitate the crime, criminal liability will extend to everybody who assisted in the perpetration of the crime merely by being part of that group. (Act to Amend the Criminal Code, art. 1 no. 9; StGB, § 184i ¶ 2.)
The legislation was passed in response to the widely reported incidents at Cologne’s main train station on New Year’s Eve 2015, where an estimated 1,000 women were sexually harassed, groped, and robbed by men operating in groups, who separated women from their friends in order to facilitate their actions. (Kate Connolly, Germany Toughens Rape Laws After New Year’s Eve Attacks in Cologne, GUARDIAN (July 7, 2016).)
Under the new legislation, it will also be easier to expel and deport foreigners who commit sexual assault or rape. (Act to Amend the Criminal Code, art. 2 ¶ 3.)
Prepared by Felix Beulke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.