Rape in Germany

In 2018 a 14-year-old German Jewish girl, Susanna Feldmann was raped and murdered on the night of the 22 or 23 May 2018. Ali Bashar, a 20-year-old asylum seeker from Iraqi Kurdistan, was named as a suspect.[23][24] The murder sparked a political debate in Germany. Ethnologist and head of the Research Centre of Global Islam Susanne Schröter at the Goethe University Frankfurt, said that these were no longer isolated incidents, speaking of a culture clash and suggesting that Germany needed to develop a new approach for dealing with aggressive men shaped by patriarchal cultures.[25] According to Schröter, there are within Islam, as with other religions, patriarchal norms that legitimize violence and sexual assault against specific types of women, and therefore some men from Islamic countries may view women in a completely different way. Far-right parties and social media exploited the case for their own ends.[24][26] A fact-checking article in Der Spiegel found that fears of immigrant crime had been amplified by far-right propaganda in the public debate beyond the actual increase which was supported by official statistics.[27]

According to a national report, the conviction rate for rape in Germany has declined: it was 20% in the 1980s, and by 2000 it was 13%.[11] According to reports from Deutsche Presse-Agentur, prior to legal changes in 2016, 8% of rape trials resulted in a conviction.[28] Conviction rates varied substantially across geographic areas, and according to income, with the three richest states having a conviction rate of 24% and seeing number of cases reduced to nearly 65% of their former levels, and the three poorest states seeing a 40% increase in cases and a 4% conviction rate.[29]

Of those reported to authorities, most (87%) were reported by the victim, 96% were interviewed and provided a witness statement, but only 23% received a forensic medical examination, one of the lowest in the EU.[11]

According to the German penal code established in 1871, the definition of rape was to compel "a woman to have extramarital intercourse...by force or the threat of present danger to life or limb," and was punishable by at least two years imprisonment. The law thus excluded any sexual contact between a married couple.[37][38] Rape was grouped, along with sodomy and incest, as "crimes against personal honor, marriage, and the family."[39] More extensive punishments were provided in cases where the victim (presumed to be female only) was younger than 16, in cases of gang rape, and in cases of "major physical violence".[40]

The German penal code experienced a number of changes during the Nazi era. Changes considered in keeping with Nazi philosophy were removed by the Allied Control Council during the re-establishment of Germany.[41]

A 1966 ruling of the Bundesgerichtshof required married women to have sexual intercourse with their partners "repeatedly" and prescribed they must not be "unresponsive" during the consummation.[42]

Between 1969 and 1974 the West German penal code was reformed by five different pieces of legislation.[41] The fourth law for the reform of the penal code, dated 23 November 1973 (Viertes Gesetz zur Reform des Strafrechts - 4. StrRG), introduced changes shifting the focus from violations of morality to violations against the individual.[43]

In 1997, a broader definition was adopted, making the law gender neutral, abolishing the marital exemption, recognizing sexual violence which did not include penetration, and expanding the definition of force to include psychological coercion. This was done through the 13th criminal amendment, section 177–179, which deals with sexual abuse.[13][44][45] The 1997 reform (due to the Dreiunddreißigstes Strafrechtsänderungsgesetz, 33rd law to change the penal code) created a new system by combining sexual assault and rape into one statue, with sexual assault as the "base" crime. Rape, which was now defined as involving penetration, was made into a subset of sexual assault, as a particularly serious form.[46][47][48]

Reflecting the law's emphasis on the requirement for the use of force, a 2006 decision by the Federal Court of Justice of Germany overturned a lower court's conviction for rape, on the grounds that the "accused ripped off the clothes from the body of the co-plaintiff and had sexual intercourse with her against her explicitly expressed will”, but had not “forced the victim with violence".[49] According to a study performed in 2014, by an organization of women's counseling and rape crisis centers, out of 107 studied cases of rape, the majority of perpetrators were not prosecuted, because their actions fell outside the legal definition at the time.[50]

The Sixth Criminal Law Reform Act, passed in 1998 included a number of changes intended to harmonize sentencing for sexual, and non-sexual offenses, and generally resulted in increases in severity for sexual offenses. It also included provisions related to the protection of children, the disabled, the institutionalized, and drug addicts.[51]

The 2002 Violence Protection Act (Gewaltschutzgesetz) focussed broadly on all forms of domestic violence. While the previous assumption was that victims should leave their joint residence, the introduction of this law gave civil courts the power to serve orders on the perpetrator to vacate the residence.[52]

German language graffiti in Vienna from 2010, reading nein heisst nein, or "no means no"

On 23 September 2016, the law was reformed again, with a new focus on lack of consent rather than resistance on the part of the victim.[53][54] It broadened the legal definition to include "any sexual act that a victim declines through verbal or physical cues, whereas the previous law required the victim fight back," and other forms of non-consensual sexual contact, such as groping and fondling, were not illegal.[55] The new law strengthened penalties for all perpetrators of sexual assault, mandated deportation for convicted migrants, and made it easier to prosecute assaults committed by large groups.[53]

The law also provided equal punishment under the following circumstances, if the perpetrator:

1. Exploits the fact that the person cannot consent
2. Exploits the fact that the person is significantly impaired because of a physical or mental condition, unless there is prior consent
3. Exploits an element of surprise
4. Exploits a situation in which the victim is threatened with serious harm in case of resistance
5. Coerces the person to actively engage in or tolerate sexual acts by threatening serious harm[54]

Although the law dropped the previous requirement for the use of coercion or force by the perpetrator, it incorporated these elements as an aggravating factor, along with situations where the victim is incapacitated due to disease or disability.[54]

The changes followed a series of cases that sparked public outrage, and the popularity of the #NeinHeisstNein (no means no) campaign.[55][56] These included the acquittal of two men charged with drugging and raping Gina-Lisa Lohfink, and posting video of it online, a video in which "she reportedly says 'stop it' and 'no' as they force themselves on her".[55] However, it is important to note that Lohfink was later convicted for falsely accusing the two men by a German court.[57] It also followed the events of the 2015/2016 New Year's Eve, mainly in the city of Cologne, where hundreds of women were sexually assaulted, but through actions which, it was ultimately determined, were not illegal under the current law.[55] Other high-profile cases included the 2016 murder of Maria Ladenburger and 2018 killing of Susanna Feldmann, which gained attention because the attacks were carried out by immigrants.[58][59]