On Thursday, German parliament (Bundestag) unanimously passed new rape legislation, based on the tenet of “no means no.” This is a huge step for Germany, as their current rape law is not based on sexual consent, but instead requires victims to show they physically resisted the attack in order for it to be considered rape or sexual assault. The weakness of German rape law was brought to international attention after the 2016 New Year’s Eve Cologne mass sexual assaults, when the victims were unable to press sexual assault charges due to the narrow legal definition of the crime.
This legislation reform is a long time coming, considering that Germany made a commitment to legally redefine rape way back in 2011. The Istanbul Convention, adopted by the Council of Europe in 2011, defines rape as the absence of sexual consent. Although Germany was one of the first countries to sign on to the convention, it never implemented the change.
I spoke with German feminist activist Inge Kleine Reed of the #ichhabnichtangezeigt (#Ididnotreportit) campaign via email, who pointed out that Germany’s new “no means no” legislation sorely falls short in terms of fulfilling the requirements of the Istanbul Convention. She said, “What’s missing is the ‘yes’ — the free, enthusiastic ‘yes’ as prerequisite for sexual activity.”
Indeed, the Istanbul Convention states: “Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstance.”
Reed emphasized the importance of this clause, which is missing from the new legislation. “It would sink all German brothels and prostitution, because what is a ‘yes’ in a brothel?” The Istanbul Convention also requires special education of lawyers and judges on sexual violence, aimed at dispelling harmful rape myths affecting trial outcomes.
Nonetheless, Reed recognizes the new legislation as progress, as it includes gains like the criminalization of groping.
Feminist activist, Manu Schon, of Germany’s Initiative for Justice in Cases of Sexual Violence also expressed reticent approval: “It’s far from what we wanted, but it’s a big step into the right direction. Today we can be happy, but tomorrow we need to keep up the fight, because we want more. Still, it’s a historical day, and I am thankful to all the grassroots organizations who planted the seeds for this, like #ichhabnichtangezeigt and others.”
As of now, the law is yet to be voted on by the upper house of parliament, but it is expected to pass this fall.