Since 2016, the criminal offense of sexual harassment has been included in the German Criminal Code (StGB). Its introduction faced significant criticism, as behavior that was previously not punishable became subject to criminal prosecution. Eight years later, a sharp increase in investigative proceedings can be observed.
According to studies, sexual harassment occurs repeatedly, particularly in the workplace. Women are especially affected. The problem: these offenses are difficult to prove, and false accusations cannot be ruled out. The consequences include not only potential prison sentences but also the loss of employment and damage to one’s reputation.
How should employees and executives behave if they are accused of sexual harassment? We provide clarity.
Are you being accused? Seek criminal defense support from an expert as soon as possible. As experienced defense attorneys in sexual criminal law, we have already achieved early dismissal of proceedings, mitigation of sentences, or acquittals for many clients. We are happy to stand by your side as legal counsel in the event of an allegation and advise you comprehensively on a possible criminal defense. You can arrange a non-binding initial consultation with us at any time.
When is Sexual Harassment Punishable?
For sexual harassment to occur, the victim must be physically touched in a sexually determined manner and thereby harassed (Section 184i StGB). Verbal harassment (e.g., catcalling) or physical proximity are generally not sufficient. These may, at most, fulfill the elements of sexual insult (Section 185 StGB).
It is irrelevant how the victim is touched, whether with an object or a part of the body (e.g., the hands).
A sexually determined manner exists whenever the touch is sexually motivated. This is primarily the case when sexualized body parts are touched, such as the genital area, female breasts, or buttocks. However, kissing or other touches perceived as sexual also fall under this. In contrast, accidental touches, for example when passing by, are not included. However, the distinction is often difficult.
The well-being of the person touched is also decisive. This must be significantly impaired by the action. This is problematic primarily because it depends on the subjective impression of the person. This often leads to further difficulties in differentiation.
However, these difficulties in differentiation also offer good defense opportunities, as the evidence is usually difficult, often involving “he-said, she-said” situations without further evidence (witnesses/video recordings). This opens up possibilities for defense strategies that, in the best-case scenario, lead to the dismissal of the proceedings. To achieve this, an experienced defense attorney should be consulted at an early stage.
Sexual Harassment in the Workplace and the General Act on Equal Treatment
Sexual harassment frequently occurs in the workplace. This is usually related to an existing power imbalance or a superior/subordinate relationship. Women are particularly affected. Therefore, the General Act on Equal Treatment (AGG) defines sexual harassment itself; however, this has no effect on criminal sanctions, but only on labor law handling and its consequences.
The AGG is significantly broader in scope: Unlike criminal law, it also sanctions suggestive remarks and verbal or non-verbal behavior. This includes in particular:
- Physical: As in criminal law, this includes touching and physical violence, but physical advances are also covered.
- Non-verbal: This refers to, for example, exposure, messages, emails, pornographic images, suggestive looks, or whistling.
- Verbal: Requests for sexual acts, inappropriate questions, jokes, sexual remarks, or “catcalling” are also covered by the AGG.
According to Section 3 IV AGG, the sexual harassment must be unwanted by the victim and classified by them as sexual harassment. Furthermore, the dignity of the person affected must be violated. If an allegation of sexual harassment in the workplace arises, those affected must expect labor law as well as criminal consequences. Usually, the problems begin in the area of labor law and quickly transition into criminal proceedings. Do not hesitate to consult a defense attorney at an early stage.
Differences from Sexual Assault
For sexual assault (Section 177 I StGB), mere touching is not sufficient. At least one sexual act must be performed on or by the victim against their express will, or the victim must be induced to perform or tolerate sexual acts on or by a third party. The threshold for sexual harassment is therefore reached much more quickly than that for sexual assault. The latter carries a prison sentence of 6 months to 5 years, and in the case of rape (Section 177 (6) StGB), not less than 2 years.
In addition, a threshold of significance must be crossed. If an offense falls below this threshold—i.e., it is not significant enough—a sexual assault can also be prosecuted as sexual harassment.
Sexual Harassment in the Workplace: What Penalties Apply?
If a conviction occurs, one must expect a prison sentence of up to 2 years or a fine. Generally, a fine can be expected. However, this can already have significant consequences, e.g., regarding immigration law, weapons law, trade law, and especially labor law.
In particularly serious cases, such as when committed by a group, the prison sentence is at least 3 months and up to 5 years.
The allegation is therefore often downplayed in society; however, it must be said that law enforcement authorities and the courts take the criminal offense seriously and prosecute it with the full force of the law. Depending on the commission of the act, a prison sentence may also be imminent.
Particularly in the case of an act at the workplace, civil and labor law consequences must also be expected. In case of doubt, those convicted face termination of employment. Furthermore, victims can assert civil claims for damages and compensation for pain and suffering. But even the allegation alone is enough to cause significant damage to reputation and one’s social life.
Defense Attorney: How Should the Accused Behave?
Sexual harassment in the workplace should always be taken seriously, even if, under certain circumstances, only internal measures have been taken so far. Do not admit guilt to colleagues or superiors here either, as they could later testify against you as witnesses. A report to the police is still possible long after the act.
If investigations occur, law enforcement authorities proceed with the full force of the law. Even in the case of a false accusation, you should not expect it to resolve itself. Experience shows that it precisely does not. Instead, you should take measures as quickly as possible and consult a defense attorney. Police officers have been trained for years to believe the alleged victims rather than protestations of innocence. A defense attorney, on the other hand, is on your side and supports you comprehensively.
For this reason, you should never make a statement to the police without legal advice. Neither to clear your conscience nor to prove your innocence. Most accused persons have no legal training and therefore cannot easily assess what their situation looks like. Thus, supposedly harmless statements can quickly become a trap.
Without a defense attorney, making a statement is strongly discouraged. Do not appear for a summons and instead have your lawyer apply for access to the case files.
Contact our law firm at any time to receive legal assistance. Our defense attorneys will support you in your individual case. Our goal is to represent you in the best possible way and to achieve an acquittal, a lenient sentence, or even a dismissal of the proceedings.
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