“In childhood, play is a preparation for life; in adulthood, it is an attempt to escape from real life.”
Abu Shlomo
As our readers know, Germany is a country that strictly upholds human rights, freedom of self-determination and other core democratic values. Sexual violence is a direct violation of fundamental rights and freedoms and is therefore prosecuted rigorously. Until relatively recently, German law followed this principle: a sexual act only counted as rape in legal terms if the victim actively resisted, or if the perpetrator used force or threatened to use it. If a woman merely asked or begged the man to stop, or burst into tears, that was not enough in law for a prosecution. If someone was grabbed by the breast or elsewhere, it was often impossible to hold the perpetrator criminally responsible. In July 2016 the Bundestag passed a new law under which a sexual act is treated as rape even if the victim offers no active resistance. Since then, the German Criminal Code (Strafgesetzbuch, StGB) has followed the principle “Nein heißt Nein” (“No means No”). A penalty now applies whenever the victim makes clear by words or gestures that they do not consent to sexual intercourse. The reform also introduced the offense of sexuelle Belästigung (sexual harassment) for people who sexually accost women. Anyone guilty of this offense now faces imprisonment of up to two years or a fine.
It is worth noting that in Germany “sexual acts” cover not only intercourse but also other forms of sexual activity — for example passionate kissing, intense embraces or petting, where partners satisfy each other without actual intercourse. In Germany, sexual intercourse is prohibited for persons under the age of 14. But what does that mean in practice? And what happens if the rule is not respected?
Sex with a minor can have serious consequences — especially if the older partner is already 21. Arguments that the contact was in fact consensual are not heard: such sexual contact is treated as a criminal offense punishable by up to 10 years’ imprisonment (§ 176 StGB). Young people should also be careful when it comes to kissing. Under the law passed in 2016, if a young man unexpectedly kisses the object of his affection on the lips on a first date, this may be classified not only as sexual harassment but also as sexual violence. Such an impulse, acted upon without the “victim’s” express and unambiguous consent, may, depending on the degree of intimacy and intensity, lead to a prison sentence of six months to 10 years. In all such situations it is therefore strongly advisable to obtain the young woman’s consent beforehand. It should also be remembered that § 177 Abs. 5 StGB provides for imprisonment of one to 15 years for sexual acts committed by force.
As is well known, laws enacted to protect rights and freedoms can often open the door to various kinds of abuse. People who have never even thought of sexual misconduct can thus become parties to proceedings in which they face substantial fines or even imprisonment. In this article we describe how a lawyer at our firm stepped in at the right time to resolve the situation and protect a client who came to us from the accusations made against him.
The Client’s Story: A Walk to the Playground with His Grandson
Our client was a 76-year-old gentleman — let’s call him Eduard. A story that looked harmless at first glance could have had very unpleasant consequences for him, but let us start at the beginning. On a fine summer day, Eduard set off as usual for a walk with his three-year-old grandson. After a short stroll around the neighborhood they went to a well-equipped playground, where the boy could play to his heart’s content in the big sandpit and on the slide. Eduard settled down on a bench with his newspapers, choosing a spot from which he could easily keep an eye on his lively grandson.
This idyll was disturbed by some German teenage girls aged 12–13. At first they were arguing heatedly about something and laughing loudly; then, apparently out of boredom, they made up a new game which they called “sex” among themselves. They ran around the playground, showing their chests and lifting each other’s skirts, all accompanied by loud, boisterous laughter. Naturally this confused the little boy: he stopped playing in the sand and watched the girls, not understanding what was going on or how he should react. When, on one of their runs, the girls once again raced past the grandfather laughing loudly with their skirts pulled up, he could no longer hold back: he told them plainly what he thought of their behavior (in Russian, however), slapped the hands of one girl that were resting on her bottom, and gave another a smack directly on her “behind”. The girls, who had not expected such a reaction, burst into tears and hurried home.
Our future client, still quietly fuming for a while about the misguided values of complete moral permissiveness and the utter lack of restraint among the youngsters, then also went home with his grandson and soon managed to forget the odd incident at the playground. That day it would never have occurred to him that the story would have a sequel. Just ten days later he received a letter from the police summoning him to an interview in criminal proceedings opened against him, in which he was accused of sexually harassing minors.
The Lawyer’s Work: Witnesses on the Balconies and the Parents’ Complaint
Deeply bewildered, the elderly man turned to our firm on his children’s advice, hoping for sound legal help. The situation, which had come out of nowhere, was anything but harmless: it carried the risk of a substantial fine or even a prison sentence. After requesting the investigation file from the police, the lawyer explained to the client that the complaint had been filed by the girls’ parents after the girls told them at home that a man at the playground had “shouted at them, then pulled up their skirts and smacked their bottoms”. This, of course, shocked the upright German parents, who decided not to keep quiet about the “incident”, tracked down the man responsible and filed a criminal complaint (Strafanzeige) with the police.
The lawyer got to work immediately: he had a long conversation with the client, clarified all the circumstances of the incident and found witnesses who were willing to confirm what had happened that day. It should be mentioned that the girls had been so noisy on the playground that several people from the neighboring building had come out onto their balconies. The lawyer prepared a reasoned application to the public prosecutor’s office (Staatsanwaltschaft) to discontinue the proceedings for lack of sufficient suspicion (mangels hinreichenden Tatverdachts) under § 170 of the German Code of Criminal Procedure (Strafprozessordnung, StPO).
The Outcome: The Proceedings Are Discontinued
As we had good reason to expect, we soon received the welcome news that our application had been granted and the proceedings against our client had been discontinued. Needless to say, a huge weight was lifted from the elderly man’s shoulders. He thanked us warmly for the work done.
Conclusion
We would like to remind our readers once again that in any country that is new to you, it pays to act with caution: what seems normal and acceptable at home may be treated as a criminal offense here. In Germany it is customary to report incidents that residents consider contrary to accepted norms to the law enforcement authorities without delay. So you should not count on unlimited leniency in this country, particularly where children are concerned. We sincerely wish you and your families that you only ever know the subject of sexual violence, and everything connected with it, from hearsay. If you do find yourself in such a situation and need a lawyer’s help, we are ready to protect your rights and legitimate interests.
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