Expansion of criminal law: Sexual intimidation should be punishable

In the future, sexual harassment using words and gestures should also be punishable. This is provided for in a draft law that Justice Minister Stefanie Hubig (SPD) published this Monday. She also wants to repair a legal glitch and set the statute of limitations for all forms of rape at 20 years.

There has been a criminal law for sexual harassment in Germany since 2016. The reason was the sexual assaults on New Year's Eve in Cologne in 2015/16. “Anyone who physically touches another person in a sexually specific manner and thereby harasses them will be punished with a prison sentence of up to two years or a fine,” it has since said in Section 184i of the Criminal Code. However, harassment through words and gestures is not covered by this and has therefore generally gone unpunished.

In 2020, a Würzburg student sparked a new discussion with her petition “Catcalling should be punishable”; “Sexual harassment without touching” should also be sanctioned, it said. The petition was signed almost 70,000 times and was widely supported. Justice Minister Hubig had already announced at the beginning of her term in office that she would present a draft law. However, Hubig avoids the term “catcalling”, which is now controversial because it could be understood as trivializing.

In the future, there will be a second paragraph in Section 184i for non-physical sexual harassment: “Anyone who harasses another person through a sexually specific statement or gesture that is likely to intimidate or harass them will be punished with a prison sentence of up to one year or a fine.”

However, Hubig does not want to punish every “unpleasant or unwanted confrontation”. “Especially in the area of ​​interpersonal and sexual communication, criminal law must leave room for failed attempts, misunderstandings, rejections and socially inappropriate behavior,” the draft law states.

Rather, it is necessary that the statement is capable of intimidating or harassing the victim. According to Hubig's justification, this would be the case if the impression was created "that a contradiction or rejection is not easily possible or will remain without consequences". Harassment could occur, for example, if the sexual comments are made while several people are surrounding the victim or while the victim is being followed for minutes on the way home at night or if the perpetrator comes particularly close to the victim (e.g. on a bus).

As a rule, men are likely to be the perpetrators and women the harassed. However, the planned penal norm is formulated in a gender-neutral manner. It not only covers behavior in public and private spaces, but also verbal harassment online, for example in chat groups.

A Second Amendment sex crime law has nothing to do with harassment. A legislative glitch from 2016 is being repaired here, which only affects a few cases and has therefore only now become known. If a person who is unable to resist (e.g. drunk) is raped (i.e. penetrated against their will), there is currently only a five-year statute of limitations. In the future, as in other cases of rape, the statute of limitations will only expire after 20 years. This is made possible by a legal technical change. In the future, rape will no longer be considered a “particularly serious case” of sexual assault, but rather a qualification – as is already the case today with the use of force or the drugging of the victim.