Sexual act
The term sexual act is used, among other things, in German sexual criminal law. The term was introduced by the 4th Criminal Law Reform Act, with which the sexual criminal law was comprehensively changed, in place of the previously widely used term of fornication in order to use a more neutral and therefore more clearly defined formulation.
The Criminal Code only apparently contains a legal definition in Section 184h , because it does not define what a sexual act is, but merely states that sexual acts within the meaning of the law are only those that are of some relevance with regard to the protected legal interest (§ 184h No. 1 StGB) and sexual acts in front of another only those which are carried out in front of another and whose process is also perceived by him (§ 184h No. 2 StGB).
Already these conceptual restrictions make it clear that the criminal law term of sexual act does not have to coincide with the general language. Even the act that is undertaken from another person, but should remain hidden from him and actually remains hidden from him, can have a sexual reference from the point of view of the agent, i.e. represent itself as a sexual act in his subjective perception, without being included in the definition of the law becomes. The subject of the legal definition of the sexual act is therefore only such sexualized behavior that can and must be made the subject of legal consequences by the legal community because of its relation to the environment.
Sexually
The act is sexual when it directly affects what is sexual in a person. The system of the Criminal Code restricts this definition to the effect that only such acts are to be understood as sexual acts that are committed using one's own body or that of another . This is derived from § 176. 4 of the Criminal Code, because there the sexual abuse of children by the active or passive making defined sexual acts and also the facts of the influence is called the child by pornographic pictures, etc., is so recognizable that this additional influence does not belong to the area of sexual activity.
The concept of the sex-related nature of the act is to be judged according to objective standards, that is, a sexual act is only present if the external appearance of the process reveals the sexual character. The subjective assessment of those involved takes a back seat here. Sexual acts are therefore also acts that are carried out without any sexual intention, for example with the sole motivation to humiliate the victim.
Actions that, according to their external appearance, can have a sexual reference, but will not actually have this, such as gynecological examinations, are not sexual acts according to this definition, because the observer would not assume a sexual reference of the event here. However, if the appropriate circumstances arise, they can assume the character of a sexual act.
action
For the concept of action, there is no special feature with regard to the legal classification of the sexual act. In the legal sense, an act can consist of doing as well as omitting . Only according to the nature of the matter is a sexual act usually carried out through active action. A sexual act through omission is not excluded. Herbert Tröndle formed the case study in which the perpetrator remains exposed with sexual intent when his victim approaches.
Protected legal interest
Since November 28, 1973 (entry into force of the 4th Penal Law Reform Act), sexual self-determination has been the legal asset protected by sexual criminal law ; morality has ceased to be a criminally protected legal asset. For children, the overall development undisturbed by premature sexual experiences is a protected legal asset .
Relevance
As mentioned, § 184h No. 1 provides that only those acts are considered sexual acts that are of some relevance in relation to the protected legal interest. The limit must be determined by the courts on a case-by-case basis, but is usually reached in the case of actions involving physical contact.
The following were considered insignificant: kisses or hugs, caressing the body (in the clothed state without chest, bottom, pubic area), a failed attempt at kissing, fleeting sexual contact. In these cases, sexual harassment has been criminalized since November 10, 2016 .
A French kiss is to be regarded as significant in children (criminal liability as sexual abuse of children ), whether a French kiss is to be regarded as significant in adults is controversial.
Individual evidence
- ^ Tröndle / Fischer: Commentary on the Criminal Code. CH Beck, Munich.
- ↑ StA Cologne 121 Js 395/07 as PDF here
- ↑ StA Cologne 121 Js 395/07 as PDF here
- ^ Tröndle / Fischer: Commentary on the Criminal Code. Section 184h StGB, No. 2
- ↑ BVerfG , decision of February 26, 2008, Az. 2 BvR 392/07 ; see. also introduction to § 184h StGB
- ↑ See for example in BzgA body, love, doctor games.
