The criminal law reform has brought several changes to the law on sexual offenses, particularly stricter penalties and the introduction of additional criminal offenses. This includes the offense of sexual assault; since then, behavior that was previously not punishable is now relevant under criminal law.
The offense of sexual assault is difficult to prove and very broadly defined. While the new regulations aim for stronger victim protection, they often represent a significant legal risk for the accused. Not only is a conviction a threat, but the damage to one’s own reputation and social environment can also be enormous. In this article, we explain what the accused must consider when facing an allegation of sexual assault.
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 sentence, or acquittal for many clients. We are happy to stand by your side as legal counsel in the event of an accusation and advise you comprehensively on a possible defense strategy. Schedule an initial consultation with us at any time.
Sexual criminal law: What does sexual assault mean?
Sexual assault is found in Section 177 of the German Criminal Code (StGB) and is a kind of basic offense related to sexual coercion or rape. It states:
“Whoever performs sexual acts on another person against that person’s recognizable will, or causes that person to perform sexual acts, or determines that person to perform or tolerate sexual acts on or by a third party, shall be (…) punished.”
A sexual assault therefore occurs if sexual acts were performed on or by the person concerned, even though they explicitly said “No” or otherwise made their opposing will recognizably clear. For a sexual assault to occur, various elements of the offense must continue to be met, which we will discuss below.
Firstly, a sexual act is required. This includes, in particular, touching sexualized areas, such as the genital area, the female breast, or the buttocks, but also significantly more extensive sexual acts. This must happen against the opposing will of the other person, and this will must also be recognizable to the person acting. In addition, intent must also be present. This means that accidental touching cannot constitute sexual assault.
When does the exploitation of a special situation occur?
In many cases, the recognizably opposing will is problematic. Especially when the other person is asleep or unconscious as a result of alcohol or knock-out drops, they cannot express an opposing will.
As a rule, people who are unable to express their will due to disabilities cannot be victims of this offence. In such cases, paragraph 2 of Section 177 of the German Criminal Code (StGB) applies. It defines the criminal liability for sexual assault in further cases:
- the perpetrator takes advantage of the fact that the person is unable to form or express an opposing will,
- the perpetrator takes advantage of the fact that the person is significantly restricted in forming or expressing their will due to their physical or psychological condition,
- the perpetrator takes advantage of a moment of surprise,
- the perpetrator takes advantage of a situation in which the other person is threatened with serious harm if they resist,
- the perpetrator coerces the person to perform or tolerate sexual acts by threatening them with serious harm.
Sexual assault: What penalty is to be expected upon conviction?
In the event of a conviction for sexual assault, the accused must expect a prison sentence of 6 months to 5 years. There is no possibility of a fine; however, a lower sentence (of up to 2 years) can still be suspended on probation. If the other person was unable to form or express an opposing will due to illness or disability, the minimum sentence increases to 1 year of imprisonment.
However, always keep in mind that the allegation of a sexual offense is enough to cause significant damage even without a conviction. This particularly affects your professional career, your reputation, and your social environment. These areas can suffer significant damage just from the allegation of a sexual offense – even if you are innocent and no conviction occurs.
In particular, people who work in social professions must expect dismissal or poorer chances on the job market. In a civil service relationship, disciplinary proceedings may occur, among other things. Therefore, contact our law firm as early as possible in the event of an allegation. We proceed with the utmost discretion in our work to prevent other damage to you in addition to a conviction.
What is the difference to rape?
In addition to sexual assault, Section 177 StGB also regulates sexual coercion and rape. These go beyond sexual assault and require further elements. Sexual coercion requires a means of coercion in the form of violence (Section 177 Para. 5 StGB).
A rape, on the other hand, occurs when the perpetrator’s sexual acts against the recognizable will of another person involve penetration of the victim’s body (Section 177 Para. 6 StGB). This does not necessarily require penetration with a sexual organ; a finger or an object is also sufficient for rape.
How should I behave if I am accused of sexual assault?
In the event of an allegation of a sexual offense of any kind, you should first remain calm and take the allegation seriously. It is not to be expected that such an allegation will simply disappear on its own. Therefore, contact our experienced criminal defense attorneys as soon as possible to receive legal advice and protect yourself and your reputation.
Furthermore: Do not make a statement to the police or the public prosecutor’s office. In the event of a police summons, you are not even obliged to appear. We strongly advise against it. You are generally obliged to appear before the public prosecutor’s office, but you can have the appointment attended or canceled with the help of a lawyer.
Should you nevertheless come into contact with the investigating authorities, exercise your right to remain silent. By making a statement, you may only incriminate yourself further without realizing it. It is understandable that you want to clarify the case from your perspective; nevertheless, it is not advisable to conduct an interrogation without prior legal advice or the accompaniment of a defense attorney.
In any case, contact our law firm as soon as possible at the following numbers:
Our specialised criminal defence lawyers are available to you at all times and will support you. Thanks to our many years of experience in sexual criminal law, we have already helped countless clients achieve the best possible outcome in their proceedings. For us, the focus is not only on a fair outcome in such proceedings, but also on discretion and the protection of your reputation throughout the entire process. You are welcome to arrange a non-binding initial consultation at any time.
