16

From The Independent Germany to tighten rape laws in wake of Cologne attacks, but a search for Google News of "rape Germany laws" also gives matches for The Daily Mail, and Russia Today:

Currently, victims must prove they resisted physically and verbally, in order to prove that they have been raped

Currently, Germany’s rape laws only include attacks where a victim can prove that they physically resisted and also verbally said ‘no’. If a victim freezes out of fear, is unable to consent due to drink or drug intake, or resisted but cannot prove that they did so, their attack does not meet burden of proof standards in the German legal system.

It cites an article by TheLocal.de "Germany tightens rape law in wake of Cologne assaults".

Wikipedia's article Rape in Germany talks about the history of rape laws in Germany, with the latest legal update being from 1997, and has no mention of victims having to physically resist their attackers.

Did German law, until recently, require rape victims to physically resist their attackers?

Update: The laws were changed in July 2016. From the BBC: Germany rape law: 'No means No' law passed

  • nitpick, but I think the question should be did it require victims to physically resist for the situation to be considered rape. Unless they had some bizarre law that charged a 20$ fine to anyone that was raped and didn't fight back then their law doesn't require rape victims to physically fight back, at worst they would potentially fail to recognize the rape. – dsollen May 24 '17 at 16:46
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    @dsollen good catch. Sadly, there are some jurisdictions that do prosecute rape victims. Oddly enough, I also came police saying that if you don't lock up your car to prevent theft, you're committing an offence in NSW. – Andrew Grimm May 24 '17 at 21:37
13

As of 16 March 2016, no changes to the law have been made in many years.

There are two main section in German Law concerning rape/sexual assault, section 177 and 179.

There is a bill (proposed law) that primarily concerns changing section 179.

Current section 179(1) is:

Whosoever abuses another person who is incapable of resistance

  1. because of a mental illness or disability including an addiction or because of a profound consciousness disorder; or

  2. is physically incapable,

and by exploiting the incapability to resist engages in sexual activity with the person or allows them actively to engage in sexual activity on his person shall be liable to imprisonment from six months to ten years.

There is not any issue of whether or not a victim resists under this section. Case law demonstrates (see page 204 of reference) that this section applies to drunk victims, so the portion of the OP that says "unable to consent due to drink or drug intake" is false.

The proposed law would add two more ways a victim could be considered unable to resist, as follows:

in der eine andere Person

  1. aufgrund ihres körperlichen oder psychischen Zustands zum Widerstand unfähig ist,

  2. aufgrund der überraschenden Begehung der Tat zum Widerstand unfähig ist oder

  3. im Fall ihres Widerstandes ein empfindliches Übel befürchtet,

sexuelle Handlungen an dieser Person vornimmt.

Proposed "1" is a consolidation of the current "1" and "2".

Proposed "2" concerns being unable to resist due to the surprise nature of the attack.

Proposed "3" concerns not resisting due to fear of appreciable harm if the person resists.

Edit:

For a complete draft of the proposed new law see Referentenentwurf eines Gesetzes zur Änderung des Strafgesetzbuchs - Verbesserung des Schutzes der sexuellen Selbstbestimmung

  • 1
    While it's true that the original law didn't technically require one to resist if they were 'unable' to do so it didn't say anything about people who were able to resist. If what you linked was the entirety of the current law then anyone who is capable of resisting and didn't would appear to not be covered as rape. If the OP question was tweaked slightly to "does German law require anyone physically capable of resisting to do so for it to be considered rape" it looks like the answer would be yes? or is there other legislation you just didn't link covering that case? – dsollen May 24 '17 at 16:43
  • @dsollen Better answer is: static1.squarespace.com/static/56330ad3e4b0733dcc0c8495/t/… : "The 1871 Reichsstrafgesetzbuch acknowledged that, besides overpowering violence, the threat of violence was a good enough reason not to attempt physical resistance. In 1997, exploitation of a situation in which the victim is unprotected and at the mercy of the offender' became an alternative to violence and threats. ... But ... there was no provision ... that recognized the victim’s express 'no' as a sufficient condition ..." – DavePhD Jun 25 '18 at 14:49
16

Did German law, until recently, require rape victims to physically resist their attackers?

No, not currently and not recently. The legal situation is not that simple.

The German Criminal Code, section 177(1) defines in its introduction three different situations, in which a sexual assault or rape can be considered:

Whosoever coerces another person

  1. by force;

  2. by threat of imminent danger to life or limb; or

  3. by exploiting a situation in which the victim is unprotected and at the mercy of the offender,

to suffer sexual acts ...

For the situation in item 1 ('by force') to be considered relevant, practice in court rulings is indeed that it is required that the offender must overcome physical resistance from the victim. For the situations in items 2 and 3, where the offender threatens the victim or exploits a defenseless victim, physical resistance is not required.

It is perhaps worth to notice that if 'just saying no' would be enough to consider otherwise consensual sex as sexual assault or rape, several common BDSM practices would be criminalized.

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    In the case of consentual BDSM, the participating parties would not press charges against one another, so the legal definition of rape becomes irrelevant. (And if it's not consentual, it's rape.) – Martin Carney Mar 17 '16 at 22:54
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    @MartinCarney That is incorrect. The German state prosecutor does not need a complain or charge from a victim to commence criminal procedures. Consensual sex between close blood relatives is prohibited in Germany and is prosecuted without any 'victim' at all. The same was the case for same-sex relations until the last special regulations were abolished in the mid 90-ies. – Tor-Einar Jarnbjo Mar 18 '16 at 8:38
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    If you read legal blogs in BDSM spheres (written by law enforcement and lawyers who are in the community), the expert consensus seems to be that most common BDSM practices are fully prosecutable in most US jurisdictions, if some prosecutor chooses to throw the book at someone. 50 shades of Prison Orange. – user5341 Mar 18 '16 at 16:18
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    @user5341 As you can read in a summarized form on the Wikipeda page on 'BDSM and the law', BDSM practices are in principle legal and not prosecutable in Germany. A relevant distinction between the US and the German legal system might be that the German prosecutor's office has much less leeway compared to their US counterparts to decide wether or not known violations of the law should be prosecuted or not. If a law violation is known, a prosecution of the offence is in Germany in most cases mandatory. en.wikipedia.org/wiki/BDSM_and_the_law – Tor-Einar Jarnbjo Mar 18 '16 at 16:39
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    It is generally OK in Germany to have a role play where “no” doesn’t actually mean “no”, as long as the partners have previously agreed on a different (verbal or nonverbal) method to communicate a real “no” (safeword). Someone ignoring the safeword would become liable to prosection for any actions done after it was used. – chirlu Mar 20 '16 at 11:58
3

Deutsche Welle, a more "mainstream" media outlet, had an article written on January 8 mentioning proposals to change the law, and described the status quo:

Germany set to finally update rape law

Angela Merkel's office seems to have dropped its objections to a legal amendment that would widen Germany's definition of rape. Until now sexual assault has often not been prosecuted if the victim failed to fight back.

TheLocal.de, in an article written in November 2013, before the New Year Eve's sexual assaults of 2015-2016 for which immigrants were blamed, titled 'Legally, just saying no is not enough' also cites a group describing the law this way:

But, as Katja Grieger from the government-funded Women Against Violence group (BFF) explained, German law defines rape only if the suspect uses physical violence or threatens their victim. “This means that repeated saying no during sex, or even screaming,” is not enough, a report from the organization states.

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    "Die Forderung des Bundesrates, dass schon ein klar formuliertes «Nein» für die Bestrafung ausreichen soll, enthält der Entwurf nicht." berlinonline.de/mitte/nachrichten/… In other words, according to the proposed new law, which hasn't passed yet (as of 3/16/16) , "no" alone is still insufficient. The proposed changes are more about very sudden surprise situations where the victim doesn't reasonably have any chance to react. – DavePhD Mar 17 '16 at 17:36

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