Nein Doesn’t Mean Nein

BERLIN — Germans are still struggling to come to terms with what happened in Cologne on New Year’s Eve, when the city’s central train station descended into chaos. A crowd of intoxicated men, reportedly of North African and Arab origin, assaulted and robbed women over several hours as police helplessly watched. More than 800 criminal complaints have since been filed, with more than 500 involving allegations of sexual assault.

The incident has added fuel to an angry public debate over Chancellor Angela Merkel’s open-door refugee policy that saw 1.1 million asylum-seekers arrive in Germany last year alone. But some Germans feel the country’s anguish has been focused on the wrong subject. They are more concerned by what they call Germany’s long-standing negligence in protecting women from sexual violence.

A publicity campaign called #ausnahmslos, or #noexcuses, is now trying to shift the public debate to the victims, and away from the alleged perpetrators, of the Cologne attacks. In the aftermath of the New Year’s Eve incident, a group of prominent feminists published an open letter demanding vast changes to how German society and politics deal with sexual violence and racism. More than 11,000 people have already signed the manifesto.

The organizers of the #ausnahmslos campaign don’t deny that the scale and coordination of the assaults in Cologne were alarming. But they point out that sexual harassment is a far more common occurrence in Germany than is typically acknowledged, especially at traditional German events like Munich’s Oktoberfest and Cologne’s Karneval, where large crowds tend to gather under the influence of massive amounts of alcohol. A 2014 study from the European Union Agency for Fundamental Rights found that one in three women in Germany has been the victim of physical or sexual violence (or both) since the age of 15.

“If there’s anything we can gain from what happened in Cologne, it’s that we start openly talking about the issue of sexual violence against women, regardless of who the perpetrators are,” said Elke Ferner, the parliamentary state secretary at the Federal Ministry for Family Affairs, Senior Citizens, Women, and Youth, who signed the #ausnahmslos campaign’s open letter. “When you make it a problem involving people from North Africa, of the Muslim faith, you’re making the problem smaller than it actually is.”

The Cologne assaults have exposed what lawyers and feminists say are serious deficits in Germany’s penal code. Sexual assault is criminally punishable in Germany only when the act involves force — in other words, when violence is used or threatened, or when the victim is in a defenseless situation.

This legal definition has perverse effects in practice. Consider the assaults in Cologne, where many women reported they were groped between the legs and under their clothes. Because the perpetrators used the element of surprise and not violence, German courts would likely not consider them to have committed sexual assault. The men (if they are ever identified) would probably only be charged for the theft that accompanied the touching.

Joachim Renzikowski, a criminal law professor at Martin Luther University of Halle-Wittenberg, says that loophole has been exploited time and time again in court. He points to the case of a 14-year-old girl who had agreed to pose as a nude model for a male adult over the age of 21. The teenager followed the man’s instructions to face a wall and pose leaning forward, with her legs spread out. He moved behind her and pulled down his pants, then penetrated the victim. “She was so shocked that she experienced dissociation; she was watching herself from outside of her body, and she couldn’t defend herself,” said Renzikowski.

Germany’s Supreme Court ruled in 2011 that the case didn’t constitute rape or sexual assault because there was no violence involved. (The man was charged with sexually abusing a minor and sentenced to five years in prison.) “These are clear cases where sexual self-determination is being violated,” said Renzikowski. “We really have to penalize these types of ‘surprise’ sexual assaults.”

An effort to do so is already underway. Germany’s justice minister, Heiko Maas, introduced a draft bill in July that would broaden the penal code to crack down on such assaults and bring German law in line with the Istanbul Convention, a European agreement that makes nonconsensual sex acts punishable by law. It went into force in August 2014. (Germany has signed but not ratified the convention. Nearly 20 EU countries have.)

German media have reported that the draft legislation will likely pass this year. But Christina Clemm, a Berlin attorney who specializes in criminal law and often represents victims of sexual crimes, says the bill is not enough. She’s part of an expert commission convened by the German Justice Ministry that’s looking into overhauling the sexual criminal code completely. After years of case law, she says, the paragraphs have become so riddled with inconsistencies and twisted legalese that they’ve become near impossible to decipher, even by German standards.

Take the code’s definition of a “defenseless situation” in a sexual assault case, which has been whittled down to a very narrow interpretation over time. If a victim is trapped in an apartment with a perpetrator, but the surrounding apartments are occupied, for example, the victim must try to be heard by those neighbors. In the absence of screams, says Clemm, the victim would not be considered to have been in a defenseless situation. The same goes for a parking garage where a car could possibly drive by and come to the rescue — no screams would mean no crime.

(Germany’s criminal code does protect victims who are rendered defenseless, by date-rape drugs for example. Sex pursued within relationships of dependency — doctor-patient, or therapist-client — are also criminally punishable.)

“A law should be made so that everyone, even potential criminals, can understand it and know what’s forbidden,” says Clemm. To that end, counselors, victim support centers, and women’s groups have been lobbying for the adoption of a “no means no” standard — they would like a woman’s vocalized rejection of a sexual advance to be treated as legal evidence for a potential rape.

But Germany has long resisted enshrining the “no means no” principle into law. Renzikowski, the criminal law professor, says the problem is that in he-said, she-said cases, proof of a “no” can be thin.

Women’s groups argue that fears of wrongful convictions and false accusations are exaggerated. A 2005 report from the state of Bavaria’s Office of Criminal Investigation estimated a little more than 7 percent of rape cases were proven to be unfounded.

Still, German judges and legislators have tended to believe it’s better to err on the side of eliminating potential ambiguity. “I’d rather have a law that gives me a reference point where a judge can say, ‘As long as these conditions are met, it’s clear there wasn’t consent,’” said Renzikowski.

Such reservations have made Germany a laggard among some of its peers. In the United States, where rape laws differ from state to state, some legislatures and courts have removed “use of force” requirements and broadened penal codes to include nonconsensual sexual acts. A handful of states have even passed affirmative consent standards (“yes means yes”) in sexual assault cases. But force, rather than nonconsent, still defines rape in about half the states.

In Europe, the United Kingdom has among the strictest laws on sexual violence: As of last year, men accused of rape have to prove the victim gave affirmative consent. And the Sexual Offences Act of 2003 includes a detailed list of various sexual crimes punishable by law.

For now, the organizers of the #ausnahmslos campaign are trying to draw attention to the everyday sexism that German women face. They admit they’ve seen little progress in the three years since they initiated a similar publicity campaign — #aufschrei, or #outcry — after a senior German politician told a female journalist her chest could “fill out a dirndl.”

But Europe’s ongoing migration crisis may finally convince Germans to do some soul-searching. With hundreds of thousands of refugees now trying to integrate, and more arriving every day, German society is responsible for setting the standards it expects the new arrivals to meet. Khola Maryam Hübsch, a journalist and author who has written extensively on Islam, sexism, and gender, points to the many images of scantily clad women in German media and popular culture as discrediting to the message Germans say they’re trying to send to the new arrivals.

“How do we want to convince them that we have a different perception of women, when our daily culture is so influenced by sexism?” she asked. “How can we be credible?”

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