The 2016 criminal law reform tightened many provisions relating to sexual offences. Among other things, it introduced the offence of sexual harassment (Section 184i of the German Criminal Code), which now makes previously non-punishable conduct a criminal offence. Since then, the number of investigations in connection with sexual harassment has continued to rise.
The threshold for criminal liability for sexual harassment is significantly lower than for other sexual offences. A criminal allegation can therefore arise quickly and damage one’s reputation. Anyone accused of sexual harassment should therefore act promptly—not only because of the risk of a custodial sentence.
Have you been accused?
Seek criminal-law support from an expert as soon as possible. As experienced criminal defence lawyers in sexual criminal law, we have already been able to achieve an early discontinuation of proceedings, a reduction in sentence or an acquittal for many clients. We will be pleased to support you legally in the event of an allegation and provide you with comprehensive advice on a possible defence strategy. You are welcome to arrange an initial consultation with us at any time.
What is sexual harassment?
For sexual harassment, the accused must have physically touched the victim in a sexually motivated manner. So-called “catcalling”, i.e. verbal harassment, is therefore not sufficient to constitute the criminal offence of sexual harassment. Physical advances are also generally not sufficient. Whether the touching is carried out with the body or an object is irrelevant.
The touching must be sexual in nature and arise from a sexual motivation on the part of the perpetrator. By contrast, accidental touching or touching for another purpose is not sufficient. Touching of a sexual nature is often assumed where certain sexualised body parts are touched, such as the buttocks, the female breast, or the genital area. However, kissing or other touching of body parts that is clearly sexually motivated can also constitute sexual harassment.
The act must also impair the victim’s well-being to more than an insignificant extent. The main difficulty with sexual harassment is that it depends on the victim’s subjective impression and individual perception. In practice, this often leads to difficulties in drawing the line when assessing where sexual harassment begins.
On the other hand, this also offers good defence options for the accused, because due to the difficult evidentiary situation, the outcome depends largely on the defence strategy. An experienced criminal defence lawyer can therefore often have the proceedings discontinued even before charges are brought.
What is the difference from sexual assault?
For sexual harassment, a simple touch by the perpetrator may already be sufficient to trigger criminal liability. This means that criminal liability is usually reached much more quickly than for other offences such as sexual assault, sexual coercion, or rape (Section 177 of the German Criminal Code). The reason: for sexual assault as the basic offence, there must be at least a sexual act by or on the victim against their will.
What penalty applies for sexual harassment?
For the reasons stated, the sentencing range for sexual harassment is lower than for other sexual offences. If convicted of sexual harassment, you face a fine or a custodial sentence of up to 2 years.
While sexual harassment is often classified in society as harmless behaviour, the courts take the allegation very seriously. It is therefore not uncommon for custodial sentences to be imposed. However, depending on the circumstances of the individual case, these can often still be suspended on probation.
In cases of joint commission, the sentencing range is higher. Here, the law provides for a sentencing range of 3 months up to 5 years. A fine is then no longer an option.
In addition, accused persons should not forget that the allegation can have consequences beyond a criminal conviction. A report for sexual harassment generally harms not only one’s social and private life, but can also have consequences for one’s reputation and career. In particular, sexual harassment in the workplace can also lead to dismissal.
Sexual Harassment in the Workplace
Sexual harassment often occurs in the workplace. This is usually related to an existing power imbalance or a superior/subordinate relationship. Women are particularly affected. Therefore, sexual harassment in the workplace falls not only under criminal law but also under the General Equal Treatment Act (AGG).
The AGG is defined much more broadly: unlike criminal law, suggestive remarks and verbal or non-verbal behaviour can also be sanctioned here. This includes in particular:
- Physical: As in criminal law, this includes touching and physical violence, but advances are also covered.
- Non-verbal: This includes, for example, exposing oneself, messages, emails, lewd looks, or whistling after someone.
- Verbal: Requests for sexual acts, inappropriate questions, jokes, sexual remarks, or “catcalling” are also covered by the AGG.
Under Section 3(4) AGG, the sexual harassment must be unwanted by the victim and be classified by them as sexual harassment. In addition, the dignity of the person concerned must be violated. If there is an allegation of sexual harassment in the workplace, those affected must expect not only criminal-law but also employment-law consequences.
How should accused individuals behave?
Accused persons should always take an allegation of sexual harassment seriously. Investigating authorities pursue suspects in sexual offence cases with full force. Even if you feel you have been wrongly accused, you should not hope that the allegation will resolve itself or that the public prosecutor’s office will discontinue the proceedings again due to lack of evidence. With the increasing public relevance of sexual offences, officers are repeatedly trained specifically not to do this and to primarily believe the (alleged) victims.
At the same time, however, accused persons should also refrain from making a statement to the police on their own in order to ease their conscience, justify themselves, or explain their perspective. Most accused persons are not legally trained and cannot assess how much an ill-considered statement or an unfortunate wording can harm them later in the proceedings. Therefore, even statements that appear exculpatory can quickly become a trap, through which the accused only incriminate themselves further and may contribute to a conviction.
Without a criminal defence lawyer, you should urgently refrain from making a statement. Do not attend a summons; instead, have your lawyer apply for access to the case file.
If you have already appeared for a summons or have been provisionally arrested, exercise your right to remain silent. This means: Do not answer any questions. Request a criminal defence lawyer and do not make any statement even while you are waiting for them.
Contact our law firm at any time to obtain legal assistance. Our criminal defence lawyers are available to you around the clock and will support you with your individual case. Our goal is to represent you as effectively as possible and to achieve an acquittal, a lenient judgment, or even discontinuation of the proceedings.
