Sunday, July 10, 2016

"No" Finally Means "No" in Germany

Last week, the German parliament finally took a key step towards reforming Germany's backward rape laws. Given that German constitutional law privileges human dignity, it is incomprehensible that, until last week German law required women to fight back against their rapists if they hoped that the state would prosecute their attacker for rape. But then again Germany has long lagged behind the United States and Western Europe when it comes to defining what acts constitute rape.  It was not until 1997 that spousal rape became a crime. Before the changes made last week, sexual assault was only classified as rape if the sex was forced by violence, specific threats, or if the perpetrator exploited the victim's vulnerability of the victim. Until now, unwanted sex did not qualify as a rape even if the victim asked the perpetrator to stop. No was not enough. On top of that, behaviors such as "groping, grabbing a person's breasts, crotch or behind" were not even considered to be a punishable crime.

Under the new law, "any person who ignores the 'obvious will' of a victim can face up to five years in prison. Moreover, a spoken "no" finally means "no." In addition, acts such as aggressive groping now qualify as criminal offenses.

Although the new law no longer insists that women physically resist unwanted sex, the change in the law by itself is not enough to protect victims of sexual assault and to punish perpetrators. The state's lenient sexual assault laws have created a culture that discourages victims from coming forward. In fact only one in ten rapes is currently reported. Of that 10%, judges hand down convictions only 10% of the time.  This suggests that the attitudes of police, prosecutors, and judges must change if Germany is to make any headway in prosecuting rapists.

Unfortunately, the incident that appears to have motivated the change in the law is not a case of a German man raping a German women. Instead, it involves the widespread attacks on women that occurred in Cologne on New Year's Eve that were allegedly committed by Muslim immigrants and refugees.  Despite the widespread reports of assaults committed on that evening, to date, prosecutors have convicted only two men of sexual assault stemming from those attacks. Both of the defendants came to Germany from the Middle East. In line with the level of the crime under German law at the time, a court only imposed a suspended one-year sentence on both defendants.

References

Naomi Conrad, "Paradigm Shift on Sexual Offenses: No Means No," Deutsche Welle, July 7, 2016.

Friedl Taub, "Germany Redefines Rape: A Survey of International Laws," Deutsche Welle, July 7, 2016.

 

http://lawprofessors.typepad.com/comparative_law/2016/07/no-finally-means-no-in-germany.html

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