After being derided for years as lacking clarity, Germany’s controversial rape law may be on the verge of significant change. The motivation behind the change was the explosion in sexual assaults in recent months, and whilst this was a tragic set of incidents, the change in the German penal code would be a way of closing this chapter with a positive outcome. As I said the change is welcome but the existence of the current law points to an existing societal problem.
The German parliament has approved a radical overhaul of the nations’s rape laws. These laws have long been derided as unclear and antiquated, and in many ways these laws prevented a number of victims of sexual assault from coming forward to the police. As a consequence of a unanimous vote in the Bundestag, the new law will have its heart the ‘no means no’ premise, which is an important amendment because it will allow women who verbally refuse consent the right to file criminal charges. Change to the German penal code also makes groping a sex crime and allows for the prosecution of groups, which was directly influenced by the events in Cologne in January 2016.
There is an interesting philosophical question that is raised by this change in the penal code. The Greens and Die Linke have previously argued that this could set a dangerous precedent as we then stray into the grey area of guilt by association. As I said the vote in the Bundestag was unanimous and so these concerns were addressed in order to protect future victims. However, in our attempt to protect victims of sexual violence we mustn’t create legal systems that prosecute people because they were in the vicinity of someone who committed a crime.
The existing social problem I alluded to earlier was the idea that until this legal change a woman verbally refusing to have sex was not able to file a criminal suit. Until this law change, German women who were victims of sexual assault had to prove to authorities that they had been physically abused or restrained before authorities could begin prosecuting the perpetrators. This legal situation institutionalises an approach to women in the criminal justice system that presumes that victims of sexual assault are not being truthful. Rape and other sexual assaults should be treated incredibly seriously and any attempt to encourage victims should be commended, and if this change of the law can change social attitudes towards this despicable crime, the net result will be a good thing.
To be honest I think it is long overdue for this legal change, but it is important not to create a legal system devoid of nuance that seeks to prosecute people without the presumption of innocence. In my view, the German law until this point has been negligent and has actively discouraged victims of sexual violence from coming forward, however the presumption of innocence must be upheld and guilt by association should never be used as a legal precedent.