Sexual abuse of inconsistent persons

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The sexual abuse of persons unable to resist was a criminal offense under Section 179 of the German Criminal Code (StGB), which was directed against the right to sexual self-determination of the mentally ill, the mentally handicapped and the unconscious. The offense related to abuse. It was therefore assigned to § 174 StGB ( sexual abuse of wards ), § 176 StGB ( sexual abuse of children ) far more closely than the facts of sexual coercion or rape . In contrast to these offenses, the use of force was irrelevant.

For the victim, neither gender , age, living conditions (e.g. dormitory, assisted living) nor the type of illness played a role. The only decisive factor was that the victim was incapable of resisting at the time of the crime.

Since November 10, 2016, acts previously threatened in Section 179 of the Criminal Code can be punished as sexual assault or rape under Section 177 of the Criminal Code.

Offense

According to this fact, the person was considered incapable of resistance if he was unable to form or express a will to resist the perpetrator. However, it did not have to be resistance to any violence that might be exercised; resistance to the sexual suggestion was sufficient. The reference in Paragraph 7 to the qualification of Section 177 Paragraph 4 No. 2 of the Criminal Code related to the performance of the offense through serious abuse or causing death. The reference to the successful qualification of Section 178 StGB referred to a result of death caused at least recklessly. The legal consequences in these were also determined by the offenses.

Order of the Federal Court of Justice of April 1, 2003

In terms of Section 179 of the Criminal Code, anyone was deemed incapable of resistance if, for the reasons stated in Paragraph 1, was unable to form, express or enforce a will to resist that was sufficient to defend themselves. The mere determination of a mental or emotional illness or disability falling under Section 20 of the Criminal Code was not sufficient to justify the assumption of inability to resist within the meaning of Section 179 of the Criminal Code. It had to be well-documented (i.e. by specialist doctors) that the victim could not offer any resistance. The “personal impression” of the victim during the main hearing was not enough to determine his or her resilience in sexual matters.

Further subcases

According to the decisions of the Federal Court of Justice, sleep or complete exhaustion were also suitable as a suitable non-resilient state within the meaning of the offense.

See also

literature

  • Dirk Wüstenberg: The violation of the sexual self-determination of the cared for . In: Supervision Law Practice ( BtPrax ) 2006, pp. 12–15.

Individual evidence

  1. repealed with effect from November 10, 2016, Art. 1 No. 8 of the Fiftieth Act amending the Criminal Code - Improving the Protection of Sexual Self-Determination
  2. ^ BGH, decision of April 1, 2003, Az. 4 StR 96/03, full text .