Sexual criminal law: What can those affected expect in cases of rape?

An allegation of rape is not only punishable by a severe prison sentence, but usually also has consequences for the person’s social environment. If a report is filed and investigations are initiated as a result, the reputation of those affected is particularly at risk.

But what constitutes rape? Which specific acts are punishable? And what should the accused be aware of? In this article, we explain.

Do you require legal assistance? Our specialized defense attorneys in sexual criminal law represent you with years of experience and profound expertise in criminal law.

We have already been able to support countless clients both in and out of court. Please feel free to contact us at any time for a non-binding initial consultation. Together, we will find a solution for your individual situation with the necessary sensitivity.

Sexual assault vs. rape – what is the difference?

Section 177 of the German Criminal Code (StGB) is one of the core offences in sexual criminal law. Unlike other offences, it regulates various gradations of an attack on sexual self-determination. The basic offence is sexual assault.

Section 177(1) StGB defines sexual assault as follows:

“Anyone who, against the discernible will of another person, performs sexual acts on that person or has them performed by that person, or causes that person to perform or tolerate sexual acts on or by a third party, shall be punished (…)”.

The following 4 requirements must be met for sexual assault:

A sexual act,
that is carried out against the will of the other person,
the opposing will must be discernible, and
intentional conduct by the accused person

Essential in all sexual offences—and most often a problem when it comes to proving the case—is the discernible opposing will of the other person. This can be expressed by saying “No”, but also by clearly recognizable defensive behavior, gestures, or facial expressions. What matters is whether this opposing will was discernible to the accused. In practice, this is extremely difficult to prove and therefore offers good defense options for an experienced criminal defense lawyer.

The same penalty also applies if the sexual assault is committed by exploiting a particular situation—for example, if the other person is not able to form or express their opposing will. If additional elements are present, such as the use of threats or violence, it may constitute sexual coercion.

Rape involves a sexual assault that is associated with penetration of the body of the other person or another form of particular humiliation.

Section 177(6) StGB states:

“A particularly serious case shall generally be deemed to exist if the offender has sexual intercourse with the victim or causes it to be performed, or performs or causes to be performed on the victim similar sexual acts that particularly humiliate the victim, especially if they involve penetration of the body (rape).”

Accordingly, there must be a sexual assault associated with sexual intercourse or an act similar to sexual intercourse. Acts similar to sexual intercourse include self-penetration, oral and anal intercourse, penetration with body parts or objects, and ejaculation by the accused into the victim’s mouth without penetration.

Allegation of rape: When does penetration of the body occur?

Sexual intercourse is understood to mean intercourse, i.e., the act in which the male organ penetrates the vagina. According to case law, this is already fulfilled if the male organ reaches or touches the female vaginal vestibule. However, the offence of rape is broader than mere intercourse due to the addition of “penetration of the body”.

Both anal intercourse and oral intercourse count as penetration of the body. In addition to penetration with a sexual organ, penetration with other objects or body parts (for example, a finger) is also sufficient to meet the elements of the offence. How far penetration into the victim’s body must go is to be decided on a case-by-case basis.

In addition, particular degradation during the act is also considered rape. For this, the accused must degrade the other person in a particular way to a (sex) object and express this through the manner of the sexual act.

Penalty range: What sentence can be expected for rape?

As a particularly serious case of sexual assault, rape carries a prison sentence of at least 2 years upon conviction. There is no upper limit, meaning prison sentences of up to 15 years are possible.

If the accused carries a weapon or a dangerous tool during the offence, they face at least 3 years’ imprisonment.

The minimum sentence is even higher if

the weapon or dangerous tool is actually used,
the victim is seriously abused during the offence, or
the victim is placed in mortal danger

In that case, at least 5 years’ imprisonment is предусмотрено. If the victim dies as a result of the offence, the prison sentence is at least 10 years, and life imprisonment is also possible (Section 178 StGB).

In addition to criminal-law consequences, victims of rape may also assert civil-law claims, in particular compensation for pain and suffering. Even if another court has jurisdiction, such a claim can also form part of the criminal proceedings.

The accused should be aware that, in addition to legal consequences, an allegation of rape can also have significant repercussions for the social environment, career, and overall reputation.

It is therefore important to handle an investigation for rape as discreetly as possible and to seek an early discontinuation. Especially if the alleged act took place at the workplace, even suspicion can have employment-law consequences, such as dismissal or disciplinary proceedings.

Police summons: Tips from a lawyer specializing in sexual criminal law

Often, the accused only learn of the allegation against them when an arrest warrant is applied for. If the rape is alleged to have taken place recently in an apartment, the police will generally attempt to find possible traces by means of a house search (e.g., semen, blood, DNA).

The initial shock of such a situation is usually followed by helplessness and panic. The question remains as to how to handle this unexpected confrontation.

Below, we present a few rules of conduct for such a case. However, this does not replace individual legal advice under any circumstances. For a non-binding initial consultation, please contact us directly.

How to behave when summoned by the police:

Always take the allegation seriously: If you believe the allegation is fabricated, you may get the impression that everything will blow over and the officers will find out themselves that there is nothing true to the alleged victim’s accusation. However, especially in sexual offences, there is usually little to no evidence and only two witnesses: the alleged perpetrator and the alleged victim. It is therefore more than unclear how such proceedings will end. Doing nothing only increases the risk of an expensive and arduous court trial. Do not waste valuable time and contact a specialized lawyer as soon as possible.
Do not appear for a summons: Excessive eagerness is also out of place in such a situation. It is understandable that you want to explain yourself to the police, present your perspective, and thus refute the allegation against you or eliminate it entirely. However, great caution is required. With a summons, you can quickly incriminate yourself and thus contribute to your own conviction. You should therefore not appear at the police at all, as you are not obliged to do so. Instead, contact a lawyer who will advise you comprehensively, request access to the files, and cancel the appointment on your behalf.
Do not make a statement: If you are already at the police station or have been provisionally arrested, make use of your right to remain silent in any case. It is your right to remain silent. Instead, request to contact a lawyer. You have this right at any time, including during the investigation.
Searches: In some cases, searches may also occur. Always remain cooperative, ask to see the warrant, and under no circumstances actively assist with the search. Do not voluntarily disclose passwords or access data. Instead, contact a criminal defense lawyer.
Do not contact the alleged victim: The accused are often angry that they are being accused of such an act. The urge to call the alleged victim or put them under pressure is strong. Nevertheless, you should refrain from contacting the complainant. Such behavior may later be held against you.
Contact our firm: The accused should consult our firm as soon as the first allegation of a sexual offence arises. This gives us, as experienced criminal defense lawyers, sufficient time to develop an effective defense strategy and to bring the proceedings to a discontinuation as quickly as possible. Therefore, contact us as early as possible so that we can find a solution together. Ideally, we can prevent charges from being filed at all. However, we will also represent you with the necessary discretion in ongoing proceedings.

Rules of conduct for victims of a sexual offence

As a victim, you can also contribute to ensuring that justice is done. This is how you can behave in the event of (attempted) rape:

Make your will clear: This is not always possible, as victims may freeze in shock during the act. Nevertheless, you should try to defend yourself and clearly express your opposing will so that it is discernible to the other party.
Collect evidence: Since there are usually no witnesses to the act in sexual criminal law, you should try to collect as much evidence as possible. In many cities, there are hospitals where you can be examined. This allows evidence to be secured after the act, even if you do not want to file a report right away. Collect everything you have: take photos of injuries, send a voice message to a friend about the incident, and try to remember the sequence of events as best you can.
Find witnesses to the act: If there are witnesses, try to obtain their contact details. Witnesses are rare, as sexual offences usually occur behind closed doors. If there are any, ask for their names and, if applicable, mobile numbers or address details so they can be located for a possible trial.
Get the help you need: Whether immediately after the act or some time later: if you notice that you are not coping with the burden, you should seek help. Confide in people close to you or contact professional organizations or psychologists. Contact the helplines listed below. If you have physical complaints, you should see a doctor. Doctors—if released from confidentiality—can also provide helpful information in proceedings.
Contact our firm: Our criminal defense lawyers also represent victims in court as private accessory prosecutors (Nebenklage). Even if you simply want to file a report, we are here for you and will be pleased to advise you. We will try to take as much of the burden off your shoulders as possible, at least from a legal perspective.

In the event of threats: If a criminal offence is imminent, call the police immediately on 110.

Helpline for violence against women: 08000 116 016
Helpline for violence against men: 0800 123 9900

What can a lawyer do in the event of an allegation of rape?

Sexual criminal law is demanding in terms of defense. Sexual offences often occur behind closed doors. This usually results in one person’s word against another’s, making the outcome of a trial unpredictable. It is decisive whom the court believes: the defendant or the victim.

The frequent situation that there is little to no evidence of the act can also be useful for a successful defense strategy. The court is open in its decision-making. Statistics also show that there are particularly good chances of a successful defense in sexual criminal law. In cases of sexualized offences, defendants were acquitted in 30% of indictments between 2017 and 2020. For other offences, the rate is only 10%.

It is important to develop an effective and promising defense strategy. Therefore, contact our experienced and specialized criminal defense lawyers. Together, we will find a solution for your case and support you both in and out of court. Be sure to note our emergency contact so you can reach us 24/7.