Is it rape when a person has sex with someone who says “no”?
It wasn’t in Germany until Thursday, when the parliament cast a rare unanimous vote closing what German Justice Minister Heiko Maas described as “blatant loopholes” in his country’s sexual assault laws.
Previously, before charges could be filed a victim had to show police and prosecutors that she or he tried to physically resist the attacker. If a victim said “no,” that alone was not enough. Maas called it a “second, bitter humiliation for the victims” when perpetrators weren’t punished.
Activists say it took years of campaigning and a few notorious cases to encourage German politicians to act — including a recent case involving a former contestant on Germany’s Next Topmodel TV show.
Gina-Lisa Lohfink, 29, is in court appealing a nearly $27,000 fine for “falsely testifying” by accusing two men of drugging and raping her in 2012. She filed the rape complaint after discovering a video of their encounter the men had uploaded to the Internet, but she told police she had blacked out after someone spiked her drink and couldn’t recall the attack.
German media widely reported that the online video showed Lohfink saying “Stop it” and “No.” (The video has been taken down.) The alleged assailants, who claimed Lohfink was drunk and had engaged in consensual sex with them, were cleared of wrongdoing.
“The case beautifully embodies everything that was wrong with the German justice system, where a woman who accuses men of rape actually has to be afraid of facing trial herself,” said Kristina Lunz, a German activist who helped start one of several “No Means No” campaigns that led to Thursday’s legal change. “There was a video, which hardly ever is the case with rapes or sexual attacks. There she was, saying, ‘Stop it.’ “
Lunz blamed “patriarchal churches and power dynamics” for why it’s taken so long to rectify the sexual assault laws, even though Germany has signed the Council of Europe’s 2011 convention making all nonconsensual sexual activity a crime.
And even with the new law, there are still loopholes, Lunz said. It’s still unclear whether drugged or unconscious victims are considered legally unable to give consent.
Lunz accused German authorities of perpetuating the idea that victims bear some responsibility for rape, pointing to judge and columnist Thomas Fischer as an example. Last month in the Die Zeit newspaper, Fischer argued that a victim saying “no” isn’t enough: “Like any statement in any other context, the ‘No’ or ‘Stop it’ can be meant quite seriously, half seriously, or not to be taken seriously,” he wrote.
Fischer also lambasted Lohfink and journalists who defended her as “nauseating.”
Shaming tactics are why few rape victims in Germany go to the police when they are attacked, Lunz said. Various estimates show between 5 and 15 percent of victims report being raped.
A 2014 study by BFF, a German association of women’s counseling and rape crisis centers, found that in 107 cases they tracked, most perpetrators got away with rape because their victims’ actions did not fall within the legal definition for physical resistance.
Germany’s parliament approved some other changes to the country’s sexual assault statutes on Thursday, although not unanimously. These criminalize sexual harassment and allow prosecutors to go after onlookers for failing to intervene in cases of group sexual assault. Another change makes it easier for German authorities to deport foreigners convicted of sexual assaults.
The latter measures were in part a reaction to hundreds of complaints filed by women who were harassed, groped or worse on New Year’s Eve in Cologne by groups of men who police say were North African or Arab in appearance.
Coincidentally, a local court in Cologne on Thursday handed down the first convictions for sex-related crimes that occurred on New Year’s Eve. It imposed a one-year suspended sentence on a 21-year-old Iraqi man for kissing and licking the face of one of the New Year’s Eve complainants. The court also gave the same sentence to a 26-year-old Algerian man for abetting a sexual assault and attempted assault the same night.