This month, the first court case for sexual harassment in the wake of the Cologne attacks is set to bring to light what many have known for years: in Germany, “no means no” doesn’t always apply. A look at the law and the hard facts.
They were the gropes heard ‘round the world. It’s been five months since the infamous New Year’s Eve sexual assaults and robberies carried out by some 1000 men at Cologne’s central train station, and Germany is still attempting to make sense of what happened. Most of the media coverage following the attacks has focused on the perpetrators’ possible refugee origins and what that means for the country’s Willkommenskultur. But there’s another, long-simmering issue at stake: is German law doing enough to persecute sex criminals?
“The media’s making it appear like this was only an exception, a singular event committed by foreigners, and not a general societal issue,” says Stefanie Lohaus, an editor and co-founder of Berlin-based feminist magazine Missy. Days after the attacks, she went online to proclaim that “Rape culture was not imported to Germany – it’s always been there.”
Of the 1128 women assaulted in Cologne, 529 reported sex off ences, and two filed rape charges. The first court trial is set to begin on May 6. The defendant, a 26-year-old Algerian man, was accused of having encircled a woman with a group of other men and groping her genital area – which would be characterised as sexual assault in most countries, but not necessarily according to German law as it stands now. “If the offender didn’t use force or threats, then it’s not liable for punishment. It’s not even coercion,” says family law specialist Theda Giencke. The men’s actions could potentially be prosecuted as “attacks” or “insults”, but not sex offences. “Just groping somebody is not enough to qualify, and that was the case in Cologne most of the time.”
When it comes to prosecuting sex crimes, Germany’s been uncharacteristically slow to catch up with the times. Until 1997, there was no law prohibiting marital rape. Sex offenders receive relatively short prison sentences: a man who rapes a woman can be sentenced to as little as one year in prison or five years if he was holding a gun to her head, compared to a life sentence in the US for the latter. And Germany’s criminal code allows for few perpetrators to be sentenced at all. Paragraph 177, which covers all forms of sexual assault including rape, states that it is against the law to subject someone to sex acts “by force, by threat of imminent danger to life and limb, or by exploiting a situation in which the victim is unprotected and at the mercy of the offender” (i.e. drugged, unconscious or otherwise unable to escape). If a woman presses sexual assault charges against a man, she has to prove the attack happened under one of those three circumstances.
“It is not easy for victims to prove that the sexual act was against their will,” says Giencke. “It’s not enough for a person to say ‘I don’t want this, stop it, leave me alone’. The victim must prove that she was forced, threatened or had no way to escape.” This requires hard evidence – something that’s often lacking in the case of sex crimes. “Ideally, a rape victim would call the police as soon as possible,” Giencke explains. “The police would drive the victim directly to the hospital, where doctors and forensic experts would examine her body and take photographs and measurements. Then the victim would be brought back to the police station for questioning. But what really happens most of the time is that the victim will go home, shower, brush her teeth, wash off everything that reminds her of the rape. She’d go to bed and, after a few nights of not being able to sleep, go to the police, but by then all the evidence would be gone. She might not even remember exactly where it happened.” A case is more likely to lead to a conviction if a woman has bruises, scratch marks or other signs she fought back against her offender – but, as Silvia Zenzen of Germany’s Federal Association of Women’s Counselling Centres and Helplines points out, “For many women this may not be possible, be it because of fear or because of physical inferiority. Others just endure it in order to protect themselves or if their children are present in the apartment.”
Sexual assault is easier to prosecute when the offender and victim weren’t already acquainted, as in Cologne. “The ‘easiest’ cases are those where the offenders are strangers,” says Giencke. But those cases make up just one-third of sex crimes in Germany. The rest are between friends, work colleagues, partners, ex-lovers. “As soon as we move into the close range, where people already have been in a relationship or are friends, the court has to find out why the sex act that took place wasn’t consensual.”
In a typical case from 2011, a woman was walking home from a nightclub with a male friend, who pulled her behind a house and pushed her against the wall. She told him she didn’t want to have sex, cried and turned away from him, but eventually submitted to him. In the end, the court decided that she’d had the opportunity to run away and hadn’t been in enough of an “unprotected situation” for the man to be prosecuted.
If you get robbed, no one will ask you in court whether you really didn’t want to give away your money. But when it comes to sex, you have to prove that your ‘no’ was clear and loud enough.
“If you get robbed, no one will ask you in court whether you really didn’t want to give away your money, or whether you said ‘no’ convincingly enough. But when it comes to sex, you have to prove that your ‘no’ was clear and loud enough,” says Giencke. “During the proceedings everything focuses on the proof, especially in cases of one person’s word against another’s. The offender has the right to remain silent, and even has the right to look into the files beforehand, see what the victim said and make up a story around it.”
Only 10 percent of sexual assault complaints actually lead to a conviction. It shapes kind of a free ticket for sexual violence, and supports the myth that when a women says no she actually means yes.
The result, according to Carola Klein of Berlin sexual violence crisis and counseling centre LARA, is that “only 10 percent of sexual offence complaints actually lead to a conviction. It leads to a carte blanche for sexual violence, and supports the myth that when a women says no she actually means yes. The emphasis is always put on what the women did wrong – whether she went into certain areas, went out at night, or dressed in a certain way.” After the Cologne incidents, mayor Henriette Reker caused outrage with her comment that women should keep “an arm’s length” from strangers and avoid walking around alone – placing the responsibility for not getting attacked on them.
Years before Cologne, the Istanbul Convention already drew attention to the inadequacy of Germany’s sexual assault laws. A Europewide measure to curb violence against women, the Convention calls for countries to “take the necessary legislative measures to ensure that the following intentional conducts are criminalised: engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object; or engaging in other non-consensual acts of a sexual nature with a person” – no qualifiers or explicit proof of self-defence necessary. Twelve EU member states, including France, Denmark, Spain and Portugal, have already ratified and implemented the convention since it came into force in August 2014, but due to the loopholes in Paragraph 177, Germany has not.
But with the New Year’s Eve incidents drawing sexual assault law back into the focus of German politics, that may change soon. In March, Chancellor Angela Merkel’s cabinet signed off on a draft bill from the Ministry of Justice that would allow sex offenders to be prosecuted even when the victim has no visible marks or signs of a struggle to prove that force was used. While Justice Minister Heiko Maas lauded the proposed law as “an important step toward strengthening sexual self-determination,” Zenzen is sceptical it will change anything. “The draft bill does not show any fundamental improvement, as the radical change of ‘no meaning no’ would not be included.”
“It is shattering,” agrees Lohaus. “If we look at the snail pace at which this topic is being worked on, it will probably remain unchanged for another 20 years. After all, the law merely mirrors the situation of society at large. At its core are the patriarchal structures we live in. A gender-equal society is not one where no violence exists – that’s utopian – but one in which offenders are sanctioned and affected people receive real support.”
Sexual assault by the numbers
- 13 percent of German women over age 16 have been victims of sexual violence.
- 58 percent of women have experienced some form of sexual harassment.
- 20 percent of women have been subject to physical violence from a partner.
- 623 cases of sexual assaults (including rape) were reported in Berlin in 2015 (down from 684 in 2014). 1649 suspects were arrested for “crimes against sexual selfdetermination” (rape, sexual assault and indecent harassment). 95.4 percent of the suspects were male; 25.1 percent were non-German (up from 21.6 percent in 2014).
Sources: Berlin police, European Union Agency for Fundamental Rights, 2014 study conducted by the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth (BMFSFJ)