“She was asking for it. Her mouth said ‘no’ but her eyes said ‘take me now’ – so I did. It’s not as if she put up a fight …” And if the lady in question didn’t resist physically – because she was intimidated by the guy’s strength or simply froze – it’s technically not a sexual assault. Welcome to the German law governing sexual offences!
Depending on where you’re from, this might be a shock. In other countries, the law specifies lack of consent as the decisive factor. While it still often comes down to a “He-said-she-said”-scenario, at least the issue of consent is addressed clearly. No means no – it doesn’t mean “maybe” or “yes” if not paired with physical resistance.
In Germany, there is an ongoing debate as to how the law should be updated (we have tracked developments since 2013, see :bsz 979 and :bsz 1038). Spoilers: Nothing has really changed yet. While a draft law has been proposed, politicians keep arguing about including the “No means no”-maxim. After all, social conventions suggest that a “no” might just be a coy way of saying “convince me” – right?
Better be quick with that slap …
Everyone should feel safe from unwanted sexual advances. In reality, though, we can’t even be sure that sexual assaulters are found guilty.
The events on New Year’s Eve in Cologne come to mind: According to the law in force, those men who merely put their hands up women’s skirts would not be convicted of wrongdoing even if they were caught.
Groping someone in public is a trivial offence. Even if you did report it and had witnesses, it’s doubtful if the assaulter would be in any legal trouble – after all, you didn’t make a good, physical defence, did you? There wasn’t any time to react? Too bad …
When it comes to groping, the situation in 2016 is as bad as it was 50 years ago.
How to be a “good” victim
Globally, the situation for women is in great need of improvement. “She was asking for it” remains a standard defence of men charged with sexual assault. The victims have to prove that they did not consent and if they don’t behave as expected, have it used against them.
Whether or not a sexual encounter was consensual is often hard to determine. Especially in high-profile cases like the current trial of comedian Bill Cosby, the waters become muddled. The defence is perfectly within its rights to question whether the victim took the drugs willingly because she wanted to have sex with a celebrity. And if she didn’t break off contact with him and report him directly, the defence might count that as further proof of consensual sexual contact. After all, she didn’t behave like a “typical” victim of sexual assault.
Then again – how are you supposed to behave? Scream, slap your assaulter, make a huge scene and immediately report them to the police? If you can’t be sure that they will actually be convicted – why bother? They might retaliate with more sexual assault, secure in the knowledge that they’ll get off scot-free. This is why Germany desperately needs to update the law governing sexual offences – because “no” should always mean “no” and everybody should feel safe in the knowledge that the law protects the victims and not the offenders.