A Russian proverb says that husband and wife are one body and one soul. What does that mean? Apparently, that husband and wife share the same wishes and aspirations and pull in the same direction. In criminal law, this idea is reflected, among other things, in the rule that gives spouses the right not to testify against each other. A wife might, for example, give her husband an alibi by stating that he was at home with her at the time of the offense he is accused of. Is that good or bad? The wife may never learn the truth about what her husband is capable of, but on the other hand she is protecting and preserving her family. The decision is hers.
On a sunny summer day, a woman called our law firm and urgently asked for an appointment with a lawyer. As it turned out, it was not she who needed a lawyer but her husband, who was accused of a very serious crime – rape (§ 177 StGB), sexual coercion (§ 177 Abs. 5 StGB), grievous bodily harm, deprivation of liberty and threats.
The woman was very upset. The situation was highly unusual: her husband was accused of a serious crime against a woman. How should a wife behave in such a situation? Some, as soon as they learn of the accusation, break off all contact with their husband without listening to any explanation and without waiting for the investigation to end. For them, the presumption of innocence does not exist. Others summon all their willpower and stand by their husband to the very end, defending him by every means and preserving their family. We do not presume to judge who is right. But a fact is a fact – in cases involving offenses of this kind, it is often not the accused themselves who contact a lawyer, but their wives.
But back to our story. Vadim (as we shall call our client) had received a written accusation from the police and was summoned for questioning. Yet it was his wife who called us. The lawyer listened to her and explained that her husband should on no account go to the police until the lawyer had reviewed the file in the proceedings opened against him. The woman promised to talk to her husband. Shortly afterwards Vadim called himself. At first his voice carried, to put it mildly, a note of distrust towards the person on the other end of the line – what useful advice could he possibly give, and how could he help, other than by taking his money! After talking to the lawyer, however, and apparently realizing that he could not do without proper legal help, he asked for an appointment. Vadim came to the meeting together with his wife.
In the meeting, the client explained how he had come under suspicion. He worked for a German company in an all-male, Russian-speaking team and was about ten years older than his colleagues. Not long before, his colleagues had decided to hold a picnic after work – to unwind after the working week with shashlik and a “glass or two” of vodka. Some young women were invited as well (newcomers from the Baltic states). According to Vadim, he did not go to the event with his colleagues but drove home after finishing work at ten in the evening (his wife confirmed this), while his colleagues stayed on and kept celebrating. He did not know what happened at that picnic, and now he had received a written accusation stating that he had raped one of the young women. According to the accusation, the offense took place at two o’clock in the morning. Vadim also said that all his colleagues had been arrested and were under investigation. He himself had already asked the public prosecutor’s office to postpone the date of his questioning because he was about to go on holiday.
The lawyer explained to the client once again that this should not have happened. Under the provisions of the Criminal Code on rape, it is not only those who directly commit acts of violence against the victim who are regarded as participants, but also those who were present and supported the perpetrator by their actions or words. That was why he must not appear for questioning at the police on his own, as he did not know what statements the people at that party had already made. And anything he said, even truthful statements, could later be used against him. Having heard the lawyer’s explanation, the client decided to “open up” – he “remembered” that the day after the party one of his colleagues had approached him and asked him to give him an alibi by confirming that he had left the party together with Vadim at 10 p.m. In other words, the colleague had induced Vadim to make a false statement. Out of male solidarity, Vadim had agreed and made such a statement – thereby, the lawyer suspected, placing himself among those suspected of aiding and abetting the offense. After all, the injured women might have described Vadim’s colleague in their statements as one of the perpetrators.
Vadim instructed the lawyer to represent his interests in these criminal proceedings, and the lawyer gave him clear instructions: no contact whatsoever with either the public prosecutor’s office or the police – everything only through the lawyer and with his consent. Vadim agreed, but could not understand at all why he might still be found guilty and punished – after all, he had only wanted to help a friend. Here the lawyer had to take on, in a sense, the role of a psychologist and explain to the client that his idea of friendship was mistaken. A friend, a true friend, would never put his comrade in a position where, by covering for his friend, he himself could become a suspect – and not only that: depending on how the proceedings developed, such so-called “male solidarity” could land him in the dock. His priority had to be solidarity within his family, which he now had to think about and protect – just as his wife was doing.
The lawyer informed the public prosecutor’s office (Staatsanwaltschaft) that he was representing his client, that the client did not intend to make any statement before inspection of the file, and applied for access to the file (Akteneinsicht). He also stated that the client would make any statement only in writing and only after reviewing the documents, and that all correspondence was to go exclusively through the lawyer. The notice was sent to the public prosecutor’s office by fax, so it arrived there the same day.
The next day, Vadim’s distressed wife called the lawyer and reported that early that morning a police officer had phoned them and made threats. In particular, the caller had accused Vadim of giving false information and remarked that if he had gone to a lawyer, he obviously had something to hide; she had tried to ask questions and obtain information. This conduct by the police officer was a serious breach of the rules of criminal procedure. But once again “family solidarity” came into play – note, dear readers, that it was not Vadim but his wife who called the lawyer. The lawyer reminded her once more not to have any contact with representatives of the police or the public prosecutor’s office, and called the police himself. He told the officer that, in his view, her conduct amounted to the use of impermissible methods by the police to obtain information and to putting pressure on the accused. After finding out the caller’s name, the lawyer then filed a complaint about the officer’s unlawful conduct.
A few days later the firm received a letter from the public prosecutor’s office stating that the criminal proceedings against our client had been discontinued under § 170 Abs. 2 of the German Code of Criminal Procedure (Strafprozessordnung, StPO) – for lack of sufficient suspicion, or insufficient evidence.
In this case, thanks to the lawyer’s skilful and professional handling, the client was able to avoid lengthy criminal proceedings and possible punishment. “Family solidarity” also played a major part – Vadim’s wife listened to every word the lawyer said and practically made her husband follow all his instructions and recommendations.
And now, dear reader, place family unity – solidarity within the family – on one side of the scales, and your friends – “male” or “female” solidarity – on the other, and see which way the scales tip.
All rights reserved. Copying or republishing this article requires a link to the original source.
