This summer, on July 7, Germany passed a new law that broadens the legal definition of rape by a huge majority. The law will make it easier for victims of sexual crimes to press charges against their attackers. The German minister of justice, Heiko Maas, cited a study claiming that only one in 10 rapes in Germany is currently reported. Only 8 percent of rape trials resulted in convictions, and while the number of reported rapes has risen since the 1980s, the number of prosecutions has not.
The new law broadens the legal definition and is said to close an important loophole. The previous law required victims to show that they physically resisted the assailant. Saying no or crying was not enough to define a rape unless the victim was in a “vulnerable situation” or a serious threat of violence. If there was no physical coercion, it could not be defined as rape. This also meant that surprise attacks -such as groping in the subway or during a concert- were hard to counteract. It also meant that women had to fight back, even if doing so could be a potential threat to their life.
The new principle of “no means no” includes all sexual activity that goes against the “discernible will” of the victim. A verbal “no,” as well as crying or any other cues, could, in theory, prove a lack of consent. This is why news about the law went viral with the hashtag #NeinheißtNein (“No Means No”). Manuela Schwesig, the German minister for women, said: “The change in the law will help increase the number of victims who choose to press charges, lower the number of criminal prosecutions that are shelved, and ensure sexual assaults are properly punished.”
But the new law is more than a long overdue reform. It was spurred by a nationwide outcry over the events of New Year’s Eve at Cologne’s central train station. Reportedly, more than 1,000 criminal complaints were filed and almost half of them for sexual assault. Women reported being surrounded by groups of men groping them and blocking the exits while police struggled to control the situation. Many of these attackers “appeared to be men of North African and Arab descent.”
So far, 153 suspects have been identified. Over 140 of them held foreign passports. Right-wing groups -usually very unlikely to defend women’s rights- were quick to point out that even a few asylum-seekers were part of the assaults, labeling them as “rapefugees” and a threat to women in Germany.
German society has also been shaken by the case of Gina Lisa Lohfink, a German celebrity. Two men were acquitted of raping Lohfink and filming the act. They then uploaded the tape in which she can be heard saying “no” and “stop it” repeatedly. However, Lohfink was fined for falsely testifying.
Yet, #NoMeansNo has received harsh criticism from different sides.
“According to the ‘in dubio pro reo’ law principle, it’s still on the victim to proof that consent is lacking,” Mirjam Dittmer, a 25-year-old business and management major from Hamburg, explained. “A verbal no is hard to prove, but a more difficult taking of evidence should not stop the state from defining and punishing criminal offenses.”
Indeed, those claiming that a verbal no is impossible to prove are missing the point. What the law does change is the fact that a sexual assault is a crime, no matter how the victim reacts. It is no longer the victim’s responsibility to respond in a way that can easily be proven in front of the court. The victim no longer has to fight back and cannot be blamed for what they did or did not do. It means that the offender commits the offense. By doing so, the law is just as important as a signal against victim-blaming and everyday sexism. As a political science student in Hamburg, Otto Knapp, 24, said: “A stronger legal standing may encourage victims to report these crimes. But whether that actually happens depends immensely on how the courts will interpret and implement the reformed law.”
In social media debates, others have suggested that the law may be used by women to take revenge or seek publicity, by falsely accusing men of rape after consensual sex, especially within partnerships or marriages. These voices (mostly male) not only underestimate how painful police interrogations are for all sides but also forget that courts will be aware of any potential misuses of the new law.
Worst of all, these critics seem to assume that women are per se revengeful, irrational hysterics who are willing to accuse of rape whenever they feel wronged by their partners and use their sexuality to deceive and bewitch men. “I cannot believe that in 2016, in a country such as Germany, we are still questioning the words of women,” Rebecca Ivancevic, a 25-year-old design student from Berlin, told Global Young Voices. “If we don’t trust what they say, how can we expect them to communicate at all?”
Yes, cases of false accusal may happen, but it is misguided to assume that the issue is more pressing than the thousands of sexual assaults that go unnoticed. It is a perception of women that deserves little room in the 21st century and shows that the critiques have little understanding of the justice system and recent court rulings. Conviction rates, as of right now, show no sign of favoring women.
#NoMeansNo is a first step in the right direction. It means that a no uttered by a woman is still a no. It makes clear that women don’t just pretend to be shy about sexual acts or to be playing hard to get. It means that their words ought to be taken seriously. It will also protect all sexes from abuse, not only women, and suggest that groping and touching are no longer trivial offenses.
Nonetheless, the law has its flaws. Mainly, it sets “No Means No” in stone. The concepts of “yes means yes” and seeking active consent were never even part of the debate. So it’s a law that still makes people negate their sexuality -- it assumes that it is more natural for women in particular to react to male advances instead of actively stating their wishes.
“Discussing female sexuality openly is still a taboo,” Ivancevic said. “Women’s bodies are more than an erotic shell, and it will take more than a law to change this.”
But the passing of this law has a much larger flaw with broad implications. Quietly, legislators also passed a clause that will make it easier to deport migrants or asylum-seekers who commit sex offenses, catering to conservative voters and far-right groups. This has to do less with empowering women and men against sexual assault in general and more with a misguided idea of who the actual threat really is.
Cover credit: Sergio Algeri/GYV