Sexual Criminal Law (Germany)

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The sexual criminal law includes penal provisions for behaviors related to sexuality . According to the Western view, sexual criminal law serves in particular to protect individual sexual self-determination . Due to the change in sexual morality, sexual criminal law is also subject to change. In the past, sex criminal law essentially served to protect public morality (morality offenses ), the social order , the honor of the family and marriage .

Legal

European Law

In the area of ​​sexual criminal law, guidelines and framework resolutions are also playing an ever greater role under constitutional law . The Council framework decision 2004/68 / JHA of 22 December 2003, which is currently being revised by a directive, should be mentioned.

Constitutional law

Under constitutional law, the prohibitions and threats of penalties in sexual criminal law serve to protect the right to sexual self-determination . The right to sexual self-determination is based on Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law . The free development of the personality protects the perpetrators at first sight, since they are allowed to live out their “personality”, but the moral law puts a fundamental right barrier against the free development.

Regulatory area

German criminal law regulates sexual criminal law exclusively in the Criminal Code (StGB). The facts are summarized there in Section 13 ( Sections 174 to 184i StGB). While the earlier view of the Reichsgericht and, at the beginning, the Federal Supreme Court interpreted the protection of the moral order in the sexual criminal law, today's protection is clearly limited to serious socially harmful behavior. In this respect, the heading was changed from “Crimes and offenses against morality” to “Offenses against sexual self-determination”.

Facts

Sexual criminal law is not based on a uniform legal interest. It is more the sexual reference that the facts have in common. The legislature has not defined the inherent concept of sexual act . Only in § 184h No. 1 StGB does he name the sexual act as one that must be of some relevance.

The offenses in Paragraphs 174 to 184f in the thirteenth section Criminal offenses against sexual self-determination of the Criminal Code are systematically coherent .

  • Sexual coercion ( Section 177 (5), Section 5, No. 8)
  • Sexual assault (Section 177 (1) to (4), Section 5 (8))
  • Rape (Section 177, Paragraph 6, Sentence 2, No. 1, Section 5, No. 8)
    • Sexual assault, sexual coercion or rape resulting in death ( Section 178 , Section 5 No. 8)
  • sexual abuse of persons incapable of resilience ( Section 179 ) (since November 10, 2016, these cases have been classified as sexual assault or rape; see above)
  • sexual abuse of prisoners, officially detained or sick and needy persons in institutions ( Section 174a )
  • sexual abuse taking advantage of an official position ( Section 174b )
  • sexual abuse taking advantage of a treatment, counseling or care relationship ( Section 174c )
  • Intercourse between relatives ( § 173 )

The offenses are clearly assigned to the protection of minors:

In the area of pornography , the latest changes have added the following offenses:

  • Dissemination of violent or animal pornographic writings (§ 184a, § 6 No. 6)
  • Making pornographic content available via radio or telemedia; Accessing child and youth pornographic content via telemedia (§ 184d, § 6 No. 6)
  • Organization and attendance of child and youth pornography performances (§184e)

The prostitution is the latest since the introduction of the Prostitution Act no longer immoral . However, taking advantage of relationships of dependency in this area is a criminal offense.

However, the harassment of bystanders should also be avoided, so the following offenses are partly catch-all offenses :

Related facts

Related facts outside of Sections 174-184g StGB, which are not themselves subject to sexual criminal law, are:

  • Sexual insults ( Section 185 StGB)
  • the coercion of sexual acts according to Section 240, Paragraph 4, No. 1, which themselves did not involve any physical contact or which were committed by threatening a sensitive evil that posed no danger to life or limb (otherwise Section 177 Paragraph 1 would have been relevant ); since November 10, 2016, these cases have also been classified as sexual assault or rape; see above
  • Blackmail on a sexual basis (also called chantage ) according to § 253 StGB

With regard to insult in particular, it is emphasized in jurisprudence that this offense is not a catch-all offense for sexual offenses.

fault

In the case of criminal liability in the area of ​​sexual criminal law, particular attention must always be paid to guilt. The presence of a “serious other mental abnormality” according to § 20 cannot always be ruled out. Precisely then, the imposition of a measure of reform and security comes into consideration , especially placement in a psychiatric hospital or preventive detention .

history

Numerous sexual law provisions were liberalized in the early 1970s. In this area, the Fourth Law on the Reform of Criminal Law of November 23, 1973, as well as the reform of paragraphs 218 ff. By the Fifth Law on the Reform of the Criminal Law should be mentioned in particular .

In 1994, the age of consent for homosexual acts in German criminal law was adjusted and the remainder of Section 175 StGB was repealed by the 29th Criminal Law Amendment Act of May 31, 1994.

Marital rape has been considered a crime since 1997 . Before it was only punishable as coercion , an offense . A uniform criminal offense was created for sexual coercion and rape. By using gender-neutral wording, men can also be victims of rape. Rape is a typical example of a particularly severe case of sexual assault.

In 2015 sexual criminal law was reformed with Art. 1 of the 49th law amending the penal code.

Tightening 2016

On July 7, 2016, the Bundestag resolved to tighten Section 177 of the Criminal Code, according to which an act is punished as sexual assault , sexual coercion or rape even if the perpetrator is aware of the victim's "recognizable will" - for example, by a clear "No" stated - disregarded. The reform is based on the so-called “no-means-no” model. Sexual coercion is no longer the basic offense, but the new type of offense sexual assault in paragraphs 1 and 2 of Section 177 of the Criminal Code. The changes took effect on November 10, 2016. Previously, cases were only punished if the perpetrator coerced the victim into sexual acts with violence or threats of violence, or took advantage of a situation in which the victim was defenseless. Furthermore, a new offense of sexual harassment was created ( Section 184i StGB). Against the background of the sexual assaults on New Year's Eve 2015/16 , another new offense was created with regard to sexual attacks that were committed from within a group ( criminal offenses from groups , Section 184j StGB). The fact that the group actually committed a sexual offense (according to Section 177 or Section 184i StGB) is a mere objective condition of criminal liability under Section 184j , so it does not have to be covered by the intent of the offender. Due to the changed legal situation, regulations in the Residence Act were adapted, which provide for easier expulsion in the event of convictions for sexual offenses.

After the amended Section 177 of the Criminal Code was passed by the Bundestag, the Regensburg criminal lawyer Henning Ernst Müller wrote : “The new offense will probably lead to more criminal charges, but not to significantly more convictions, as the problem of proof with the new regulation is bigger than smaller. “In addition, it is to be feared that the new regulation of § 177 StGB in the application of the law will lead to a“ tendency towards negligence ”. The chairman of the German Association of Judges , Jens Gnisa , commented on the new regulation of § 177 StGB: "These processes will usually be difficult to conduct because testimony stands against testimony and there are no further indications." The public must be aware that the Reform is unlikely to lead to a significant increase in convictions. Rüdiger Deckers from the German Lawyers' Association said: "There will be great difficulties in reaching a judgment in the process - when it comes to the question, there has been a" no "." He sees a great danger that the number of wrong judgments grow and said: "Socio-politically, the signal" No means No "is correct - but the attempt to implement this through criminal law is wrong." The chairman of the Bund Deutscher Kriminalbeamter , André Schulz , said: "The new regulations promise more than they can hold in the end. ”They are meant well, and one or the other legal loophole will be closed. New construction sites would arise for this because it is difficult to prove the offenses.

The new regulation received praise from the German Association of Women Lawyers . The chairman of the Criminal Law Commission, Public Prosecutor Dagmar Freudenberg commented: “It was high time to finally anchor the principle“ No means No ”in the penal code - from physical sexual harassment such as“ groping ”to sexual assault and rape. All sexual acts that are not consenting to be committed against the recognizable will of another person are punishable by law. This is also postulated by the Istanbul Convention of the Council of Europe from 2011, which Germany signed and can now finally ratify. "

See also

literature

  • Gernot Hahn: Relapse-free sex offender. Salutogenic factors in former correctional prisoners (research for practice) . Psychiatrie-Verlag, Bonn 2006, ISBN 978-3-88414-415-2 .
  • Tatjana Hörnle : The law to improve the protection of sexual self-determination. In: NStZ 2017, pp. 13–21
  • Andreas Marneros : Sex murderer. An explanatory narrative . Psychiatrie-Verlag, Bonn 3rd edition 2006, ISBN 978-3-88414-284-4 .
  • Werner Krebber: Sex offenders in the public caricature. Facts - Background - Clarifications . Konkret-Literatur Verlag, Hamburg 1999, ISBN 978-3-89458-177-0 .
  • Joachim Renzikowski : No! - The new sexual criminal law . In: NJW 2016, pp. 3553–3558
  • Bernd Roggenwallner: Offenses against sexual self-determination: criminal law - civil law - family law - social law - forensic psychiatry . ZAP Verlag April 8, 2011, ISBN 978-3-89655-590-8 .

Individual evidence

  1. ↑ European Union : Combating the sexual exploitation of children and child pornography .
  2. ↑ B. Ulrich: Thoughts on the “moral law” ; see. Brockhaus 1938.
  3. ↑ repealed with effect from November 10, 2016, Art. 1 No. 8 of the law of November 4, 2016 ( BGBl. I p. 2460 )
  4. ↑ Margrit Gerste: Finally: Marital rape will in future be considered a crime . In: Zeit Online , May 16, 1997.
  5. ↑ a b Martin Heger in: Lackner / Kühl, StGB, 29th edition 2018 before § 174 Rn. 9.
  6. ↑ 33rd Criminal Law Amendment Act - Sections 177 to 179 StGB (33rd StrÄndG) (G-SIG: 13020660). In: DIP: Documentation and information system for parliamentary processes. German Bundestag, accessed on August 9, 2020 . .
  7. ↑ 33rd Criminal Law Amendment Act - Sections 177 to 179 StGB (33rd StrÄndG) Federal Law Gazette 1997 I p. 1607
  8. ^ PDF version of the 49th Act Amending the Criminal Code
  9. ↑ New Sexual Criminal Law: No means no. And what does that mean now? In: Spiegel Online . July 7, 2016, Retrieved January 5, 2017 (archive) .
  10. ↑ Changes from November 10, 2016 by the Fiftieth Act amending the Criminal Code (archive) .
  11. ↑ a b Tatjana Hörnle : The law to improve the protection of sexual self-determination. NStZ 2017, pp. 13–21 (14).
  12. ↑ BT-Drs. 18/9097 , 21 f.
  13. ↑ Amendment by: Fiftieth Act to Amend the Criminal Code - Improving the Protection of Sexual Self-Determination of November 4, 2016, Federal Law Gazette 2016 I p. 2460 .
  14. ↑ Bundestag: "No means no" decided in sex criminal law. (Memento of the original from July 7, 2016 in the Internet Archive). Deutschlandfunk, July 7, 2016, accessed on July 7, 2016.
  15. ↑ Thomas Fischer : For the last time: No means no. The time of June 28, 2016.
  16. ↑ Rape: What Sexual Criminal Law Reform Will Really Change. In: welt.de . July 7, 2016, Retrieved January 5, 2017 (archive) .
  17. ^ Final report of the Reform Commission on Sexual Criminal Law. Federal Ministry of Justice and Consumer Protection, presented on July 19, 2017 ( PDF 1399 pages, 6.7 MB).
  18. ↑ Joachim Renzikowski: No! - The new sexual criminal law. In: NJW 2016, 3553 (3557).
  19. ↑ BT-Drs. 18/9097 , p. 31.
  20. ↑ Annett Meiritz: Debate in the Bundestag: Four Findings on the New Sexual Criminal Law . In: Spiegel Online . July 7, 2016, Retrieved January 5, 2017 (archive) .
  21. ↑ Henning Ernst Müller : The "recognizable" will according to the new sexual criminal law - recognizably flawed . Beck.de, July 8, 2016 (archive) .
  22. ↑ a b c dpa: Lawyers and police officers criticize the new sexual criminal law. Süddeutsche Zeitung , July 8, 2016, accessed on August 26, 2020 .
  23. ↑ Thomas Fischer : Should the sex criminal law be tightened? Part 1: The Protection Gaps Campaign - Part 2: There is no scandal. The period from February 3, 2015 and February 10, 2015.
  24. ↑ Deutscher Juristinnenbund e. V. - Press release 16-20 / djb welcomes paradigm shift in sexual criminal law: "No means no!" finally becomes law. In: www.djb.de. Retrieved September 27, 2016 .