Shoplifting. On the face of it, a single concept — taking goods out of a store without paying for them — and yet it covers a whole range of social phenomena. Some steal because they lack the money but not the appetite. Others steal to express their fundamental “NO!” to capitalism and petty-bourgeois property (remember those terms?). For others still, it is a kind of multiplayer game: “Steal and show what you’re made of!” Naturally, it is not only the thieves who take part in this game but also the stores themselves, which keep increasing their spending on stronger security systems and on hiring store detectives. And every honest person is caught up in it too: retail chains are forced to raise prices because of the ever-growing cost of fighting shoplifters. Look at the situation from the perspective of an honest citizen whose wallet subsidizes other people’s cravings, social protests or amusing hobbies, and it becomes clear why the law punishes even seemingly trivial thefts so strictly. And yet! Every general rule has its exceptions, and while the law does not let an offense go entirely unpunished, it sometimes proves quite lenient once the circumstances are taken into account. The heroine of this unusual story is an unusual lady herself. But let’s take things in order.
The Thieving Magpie
Adele is a striking, downright flamboyant woman. Her large glasses with weak lenses serve her image more than her eyesight. Dolce & Gabbana. Lots of shiny accessories. Louis Vuitton in hand — not necessarily genuine. Bold lipstick. She is over fifty, has two children and already young grandchildren. Married twice. Two previous convictions.
Adele had been caught shoplifting twice before. Twice she received a fine (Geldstrafe). What Adele loves most are perfume stores or drugstore chains like Rossmann. The first time she took a small bottle of perfume and a lipstick. The second time, a manicure set could have become her loot. But judging by a few indirect hints, those two occasions were just two cases of bad luck. How many successful attempts there were otherwise, only God knows — or his adversary, who whispers to this striking lady every time that she simply has to steal.
It cannot be said that the people at our firm had known Adele for long — quite the opposite. The acquaintance was sudden and brief. Hence the brevity of this portrait of our client, who called our firm one day before the court hearing on what was already the third shoplifting of her life to end badly. The outcome could have been even worse, however, had she not sought legal help. When asked why she had not contacted us sooner, Adele burst into tears on the phone. It was impossible to turn her down. At the first meeting, right in the courthouse corridor on the day of the hearing, it became clear that her vivid emotional outbursts were entirely in keeping with her appearance.
The Lady Got to Work
Here is the sad story Adele told our attorney while she waited for the case file before the hearing. It was a dreary day, one of the endless series of gray Berlin winter days. Her mood was miserable. It was still too early in the day for a sip of cognac. There was some nonsense on TV. Her soul longed for some joy. After taking stock of her bathroom, Adele realized she was on the brink of disaster: the toilet paper was almost gone, and there was hardly any laundry detergent left. That was reason enough to get up from the sofa, put on her make-up, get dressed and go to the nearest store that sells everything you need for personal care.
As she walked along the shelves, Adele felt a strange yet familiar, mounting restlessness. Toilet paper and laundry detergent went into her shopping basket. Adele moved on to the next aisle with other goods. And a couple of lipsticks and a new mascara went into her bag. Once Adele’s brain registered that the program had been completed, she headed for the checkout. Having handed the cashier five euros, Adele walked confidently toward the exit. But her brain heard a “Guten Tag!” and made her feet stop.
In front of Adele stood a store detective with a telltale smile. Adele’s brain said “Oh!” to her heart, and her heart began to race. The polite detective asked Adele into an office and, instead of offering her a coffee, invited her to show the contents of her bags. The bags contained a vanishingly small fraction of the goods in the store. A mere trifle, in other words. The total value of the goods Adele had not paid for came to just nineteen euros and ninety cents. Was it worth getting so worked up over such a trifle? But the detective was not worked up — if anything, he seemed to be mocking her. He could expect a bonus for catching a thief; Adele could expect nothing good. The stolen goods were confiscated, Adele paid the fine at the store and went home to her cognac.
Her heart was full of pain. The detective seemed to her like a spawn of hell. As it turned out, he had not simply happened to catch her at the exit with the lipstick; he had coolly watched her on CCTV the entire time she was in the store. He had waited until some of the goods had disappeared into her coat pocket, then went to meet her and cold-bloodedly exploited her weakness to earn himself a professional bonus. Adele surrendered to her warm and faithful drink. But soon a letter arrived, and it brought no luck. It informed her that criminal proceedings had been opened against her for the theft in the store and that the case would go to court in accelerated proceedings (beschleunigtes Verfahren). Fate had dealt another blow.
Sick Leave Not Included
Adele was charged under § 242 of the German Criminal Code (Diebstahl — theft), which provides for imprisonment of up to 5 years or a fine for the unlawful appropriation of another person’s property. Of course, the value of what was stolen plays a role in sentencing, but even the smallest theft is still theft. True, many people apply the following principle to other people’s property: if someone takes something from me, it’s theft; if I take something, I’ve merely “borrowed” it or “taken a look.” Strangely enough, however, the law does not accept this double standard about property. Yet judging by the impression our attorney formed during her brief conversation with Adele, the case really was not clear-cut. Adele was probably suffering from kleptomania.
A Brief Overview
Kleptomania is an impulsive, irresistible urge to steal in which the focus is not on the object itself but on the act. To this day there are no clear criteria for distinguishing kleptomania from theft. Such a pathological urge is to be regarded as an illness in which a decline of intellect and morals sets in and progresses, and this can go unnoticed for some time. In such cases the theft takes place under the influence of a brain disorder, and these episodes of clouded consciousness eventually lead to mental decline, in which those affected give in to their impulses and are not aware of what they are doing at the moment of the act. Kleptomaniacs report an unusual feeling of tension before the act and a feeling of satisfaction afterwards.
So how does this illness differ from a crime?
First, theft driven by kleptomania has no “commercial value.” A true kleptomaniac never sells what they have stolen and almost never uses it — in fact, they don’t need it at all.
Second, a kleptomaniac never hatches elaborate plans for a theft — the loot is not money or diamond necklaces but small items that are freely accessible.
Kleptomania (from the Greek klepto, “to steal”) is an impulsive, irresistible urge to commit theft.
Third, unlike most thieves, kleptomaniacs suffer from their compulsion. They struggle painfully to suppress the urge to take something — though they do not always succeed. People with kleptomania usually describe their inner state like this: unbearable tension, a craving burning from within that can only be satisfied by pocketing “that very thing on the top shelf in the supermarket.” Immediately after the theft comes relief, a deep sense of satisfaction, as after a hearty meal or good sex. This satisfaction is sometimes mixed with a feeling of indescribable bewilderment: “Why on earth do I need this junk?! What is it even for, and what am I supposed to do with it now?!” Sometimes kleptomaniacs put the stolen item back, sometimes they keep it as a useless souvenir, but they almost never use it.
And fourth, the vast majority of kleptomaniacs are so ashamed of their condition that they would rather call themselves criminals and go to prison than admit they are ill. Thieves behave in exactly the opposite way.
In criminology, the key criterion for distinguishing a kleptomaniac from a thief is precisely the absence of material gain. And that is the source of a great deal of confusion.
In the International Classification of Diseases, kleptomania has been assigned the code F63.2. Yet although kleptomania is recognized as an illness, you cannot get a sick note for it, and the diagnosis does not exempt anyone from criminal liability. With such a history, however, one may well hope for a degree of leniency from the court.
In the short time left before the main trial hearing (Hauptverhandlung) began, our attorney had no opportunity to request the case file, review it and prepare her objections. She arranged with the client to arrive at court early and look through the documents there. The documents shown to the attorney before the hearing revealed that the store detective had been watching Adele on the video camera. He waited until she had put the goods in her pockets, passed the checkout and headed for the exit. There he stopped her, asked her into an office and told her to show the contents of her bag. On checking the items the customer had bought, he found that she had not paid for two lipsticks and a mascara. When the detective asked where the receipt for these goods was, the customer admitted she had not paid for them. The detective confiscated the goods, wrote a report and accompanied the client to the checkout to pay the fine. Everything matched what Adele had told the attorney.
The attorney’s task was to keep her client’s punishment to a minimum — to keep the fine as low as possible and to avoid a prison sentence. That was not easy, because (as the attorney learned from the case file) Adele had already come to the authorities’ attention twice for petty theft. In such cases, reaching an agreement with the court is practically impossible. Adele was facing either imprisonment or a fine.
In her closing statement on the client’s behalf, the attorney asked the court to take into account that the client had committed the two earlier thefts long ago and had been law-abiding for a long time since. Moreover, the store had suffered no loss as a result of her act. Admittedly, this was thanks to the store detective’s professional conduct, not to Adele having come to her senses. But the client sincerely regretted what she had done and deeply regretted the incident. She was already working on herself: since kleptomania is a form of mental disorder, she had turned to a psychologist for professional help. In addition, the client was unemployed and living on social benefits. The attorney asked the court to impose a fine of 40 daily rates (Tagessätze) of 10 euros each.
After hearing the arguments of both sides — the prosecution, which pressed for a harsher sanction than a fine, and the defense — the court gave its view: purely on grounds of prevention, it could not ignore the fact that the defendant had committed similar offenses before. In view of the arguments put forward by the defense — the defendant’s remorse and the fact that she had sought professional psychological help — the court granted the attorney’s motion and imposed a fine of 550 euros on Adele.
For our spur-of-the-moment client, this decision was close to the best possible outcome. She does have to pay the fine, and this conviction — like every criminal conviction — will be entered in the Bundeszentralregister (the Federal Central Criminal Register). A prison sentence, however, was avoided. Of course, this does not mean that Adele can count on the court’s leniency in the future. One can only hope that psychological support will prove an effective means of combating her condition. Our firm’s attorney deserves the highest praise for building, in the shortest possible time — from reading the file to the hearing — an argument that made it possible to keep Adele’s punishment to a minimum.
All rights reserved. Copying or republishing this article requires a link to the original source.
