Groping is not punishable by law, and the ‘no’ of a rape victim does not suffice for rape to be punishable as such. This disgraceful situation needs to change.
The great wave of groping in Germany continues unchallenged, everyday and beyond ‘Cologne’. One in three women in the EU experiences sexual and/or physical violence – every seventh woman experiences severe sexual violence. The vast majority of rapes go unpunished.
The impact of ‘Cologne’
Shortly after the events in Cologne on New Year’s Eve, Federal Justice Minister Heiko Maas reiterated that a comprehensive reform of laws on sexualised violence was urgently required. It’s 2016 but such laws are stuck in the 1950s. The cynics amongst us would say: what should we expect from a country in which marital rape was legal until 1997?
On the 16th of March the German Cabinet decided to strengthen the law on sexualised violence. But the changes do not go anywhere far enough towards making all non-consensual sexual interactions punishable by law, as required by the Council of Europe’s Istanbul Convention. Because – and here’s the problem – only under a few exceptions do victims not have to defend themselves for a court to recognise their rape as such. A simple “No” still does not suffice under German law. The principle that sexual self-determination is only recognised by law when it is physically defended by the victim remains in place. “A quick squeeze of the breasts, a hand on the ass, an unwanted kiss — when it happens in a public space, none of these are against the law in Germany.”
“What if, for example, property rights were only considered valid if they were physically defended?” Do you have to forcefully defend your bag for it to be considered theft if someone takes it?
German law on sexualised violence: In complicity with the perpetrators
In Germany, where a dangerous mixture of arrogance, ignorance, privilege and racism leads to a situation where ‘gender equality courses’ are advocated as necessary for migrant people only, sexualised violence is everyday reality. And still, the justice system has been constructed in such a way that it often ends up in complicity with the perpetrators. A fact that is stuck in the heads of many victims: reporting a rape achieves nothing but further trauma.
The failures of the legal system have direct consequences: it’s estimated that only 5 to 15% of all women in Germany who have been raped report this to the police, which amounts to around 8,000 women per year. Hundreds of thousands of attacks are unaccounted for. And only 8% of rapists are convicted.
Power dynamics and normative consequences of laws
It’s important to consider power dynamics and look at the normative consequences of laws. It is relevant that women are the majority of victims of sexualised violence. The perpetrators are almost exclusively men, particularly for crimes such as rape. This power imbalance has to be considered. Anything else protects laws which approve of these warped dynamics instead of abolishing them. It’s precisely because of that that the judiciary and the legislature need to pay special attention to the voices of those who are directly affected. Still, their voices are often not the loudest: over the last couple of weeks many male lawyers have argued that there is no need to change anything in prominent German newspapers.
We live in a society in which power is concentrated in the hands of a specific group – white, normally old, men. Those who honestly desire universal acceptance of the sanctity and dignity of all people must therefore, in such skewed societies as ours, listen to the experiences and suggestions of those who bear the brunt of the dangerous consequences of the disparities in society.
Privilege is one person’s belief that something isn’t a problem because they aren’t affected by it personally. Anyone seeking to combat racism should pay attention and listen to people of colour; anyone seeking to combat homophobia should pay attention and listen to LGBTQ people. And with regards to sexualised violence the voices of women should carry the most weight. Anything else would be a farce.
Cultural shift needed – both in the statute books and in people’s minds
A legal change towards “No means No”, as suggested by UN Women Germany in tandem with many other organisations, including the governments of four states in the German Bundesrat, would send a strong signal about the kind of society in which we want to live. The countries of the Council of Europe have stipulated this in the Istanbul Convention in 2011. Germany hasn’t gone along with it.
There’s no sensible argument against “No means No” apart from the frantic upholding of a patriarchal system in which the experiences of men are valued more than those of women. We badly need a cultural shift – both in the statute books and in people’s minds. Sometimes I just can’t believe that we’re still fighting for this in 2016.
Kristina Lunz is a graduate of the Oxford Department of International Development and is currently working at the Blavatnik School of Government as Special Projects Assistant. She is also advising UN Women Germany on the campaign ‘No Means No’ and co-author of ‘Ausnahmslos (‘No excuses)’ – Against sexualised violence and racism’. Follow her on twitter: @Kristina_Lunz