German rape law finally accepts that no means no – but is a statute enough?

After Cologne attacks. EPA

In July 2016, Germany changed its legislation on rape to clarify that “no means no”. That’s right … in July 2016. Until now, by virtue of Section 177 of the German Criminal Code, a guilty verdict in cases of sexual assault demanded, shockingly, signs of physical defence.

Such laws, unsurprisingly, have long had a pernicious effect on the experience of victims. To characterise the recent changes as timely is a ridiculous understatement.

Whether or not it is accompanied by a physical struggle, fighting back, or screaming at the top of one’s lungs, the use of the term “no” signifies a lack of consent to sexual activity. To disregard this simple word amounts to rape, plain and simple. The need to assert this statement in 2016 should be redundant or, at the very least, tiresomely obvious. But such a conversation was commonplace in Germany just a few short weeks ago, when a change to the country’s legal system finally introduced the “no means no” statute.

So what will the response be across Germany – from the criminal law and justice systems, and from German society itself? As a former law student, now a public policy academic, and always an engaged citizen, the congratulatory response in my mind towards this legal “breakthrough” soon shifted towards a scathing critique, accompanied by a strong air of cynicism.

As an undergraduate bogged down by heavy statute books, my adolescent self would have welcomed Germany’s recent changes to the black letter of the law. Former miscarriages of justice would undoubtedly have enraged my idealistic young mind, such as the recent shocking case of model and television personality Gina-Lisa Lohfink, who was fined after a court ruled she had falsely accused two men of rape. This was despite a video surfacing in which she can be heard saying the word “no” several times, and the decision has been appealed.

But is this new statute enough to rectify such ills? Should we have faith that the change in law will have any real impact on German society?

Ushered in with other changes catalysed by the Cologne attacks on New Year’s Eve 2015, when around 500 women filed complaints of sexual assault, it appears that the legal shift was motivated more by exceptional events than a gentle evolution of the law in line with global trends.

An unforeseen shock to the political system can lead to serious, and often hasty, change. Of crucial importance to its success is a cultural and social environment which welcomes the new approach. And it is here that the red flags appear.

German media response. Shutterstock

The United Nations has long promoted an appropriate standard for sexual assault legislation, yet Germany has continually ignored its demands for the removal of physical resistance as a necessary element of a guilty verdict. It is frightening to consider what the state of play might be once the level of public empathy for the events in Cologne dissipates. How strictly and enthusiastically will bureaucrats implement this law? Can German victims really now look forward to a paragon of criminal justice?

Victims turned away

In England and Wales in 2014, a damning HMIC report revealed that those claiming to have been sexually assaulted were less likely to be believed by the police than any other potential victim of alternative crimes. One explanation for this, according to criminology research, is a continued consideration of clothing worn, intoxication levels and previous sexual history when assessing the validity of the claim. These amount to a host of “rape myths” that are as prevalent across the police force as they are wider society.

If the institutional barriers to proving sexual assault proliferate across the UK, in which a requirement for bodily defence has long been disregarded, how can this be so easily removed in Germany? Running alongside my own academic analysis, therefore, is a strong air of cynicism from a concerned member of the public.

Certainly, in a global society in which flippant jokes are just one example of a flourishing rape culture, the need for a shift in perception appears vital for the protection of victims. That Germany’s statute book now boasts this standard is unequivocally a hopeful first step. But it must be acknowledged that the justice system may yet remain ingrained with an understanding that a lack of consent is demonstrated through physically fighting back. Although the publicly appetising “no means no” tag line garners much attention, a far more complicated culture looks set to constrain the impact of those vital words which have finally been voiced in parliament.