Germany drafts law to criminalize intimidating sexual harassment without physical contact

By Christian Rath

A draft bill aims to broaden the criminal liability for sexual harassment. However, it is not intended to apply to every "unpleasant confrontation."

Sexual harassment through statements online is also to be made punishable in the future. Photo: Funke Foto Services/imago

Draft Bill Published by Justice Minister

In the future, sexual harassment through words and gestures is also to become punishable. This is provided for in a draft bill published by Justice Minister Stefanie Hubig (SPD) this Monday. In addition, she intends to repair a legislative oversight and establish a uniform 20-year statute of limitations for all forms of rape.

Background: The 2016 Criminal Provision

Germany has had a criminal provision for sexual harassment since 2016. The trigger was the sexual assaults in Cologne on New Year's Eve 2015/16. Since then, Section 184i of the Criminal Code has stated: "Anyone who sexually touches another person and thereby harasses them shall be punished with imprisonment for up to two years or a fine." However, harassment through words and gestures is not covered by this provision and has therefore generally remained unpunished until now.

In 2020, a Würzburg student sparked a new debate with her petition "Catcalling should be punishable," which called for "sexual harassment without touching" to be sanctioned as well. The petition was signed almost 70,000 times and received broad support. Justice Minister Hubig had already announced at the beginning of her term that she would present a draft bill. However, Hubig avoids the term "catcalling," which is now controversial because it could be understood as trivializing.

The Proposed New Provision

In the future, Section 184i is to include a second paragraph for non-physical sexual harassment: "Anyone who harasses another person through a sexually specific statement or gesture that is suitable for intimidating or pressuring them shall be punished with imprisonment for up to one year or a fine."

Not Every "Unpleasant Confrontation"

Hubig does not intend to punish every "unpleasant or unwanted confrontation." The draft bill states: "Particularly in the area of interpersonal and sexual communication, criminal law must leave room for failed attempts, misunderstandings, rejections, and socially inappropriate behavior."

Rather, it is required that the statement be suitable for intimidating or pressuring the victim. According to Hubig's reasoning, this would be the case, for example, if the impression is created "that an objection or rejection will not be readily possible or will not remain without consequences." Pressure could exist, for example, if sexual remarks are made while several people surround the victim, or while the victim is followed for minutes on their way home at night, or if the perpetrator comes particularly close to the victim (for example, on a bus).

Gender-Neutral and Applicable Online

Although men are likely to be the perpetrators and women the victims in most cases, the planned criminal provision is formulated in a gender-neutral manner. It also covers not only behavior in public and private spaces but also verbal harassment online, such as in chat groups.

Repairing a Legislative Oversight

A second change to sexual offenses law has nothing to do with harassment. Here, a legislative oversight from 2016 is being repaired—one that affects only a few cases and therefore only became known now. When a person incapable of resisting (for example, intoxicated) is raped (meaning penetrated against their will), only a five-year statute of limitations currently applies. In the future, as in other cases of rape, the offense is to expire only after 20 years. This is made possible by a legal-technical change. Rape will no longer be considered a "particularly serious case" of sexual assault but rather a qualification—as is already the case today when force is used or the victim is drugged.

Related Articles

• Tightening Sexual Offenses Law: It's Not About Failed Compliments — Commentary by Christian Rath: The draft bill against verbal sexual harassment does not go far enough for many. But better to tighten later than to overshoot the mark.

• Rape Trial in Berlin: "Hard to Comprehend" — 12 years and preventive detention—that is the verdict in the case of Frank S. But when can the 44 remaining victims expect justice? By Anna Simbürger and Uta Schleiermacher.

• Frank S. and Cornell: Why Do We Care About Jane Doe? — Column "Klang und Krach" by Carolina Schwarz: 57 men at the US elite university Cornell know that a woman is being raped, and no one helps. And in Germany? People also like to look away.

Feedback: Comment | Report an error