Developing a consent culture: “Only YES means YES“
We advocate supplementing the current sexual offences law with the principle of “Only yes means yes” with the aim of developing and promoting a culture of consent in Germany. We also want to raise awareness in our society about the importance and necessity of a consent culture.
The context
Sexualised and physical violence against women remains a major problem in Germany. On average, a woman is murdered every third day; almost one in seven women in Germany has been raped or sexually assaulted. These figures come from a representative study published by the German Federal Ministry for Family, Seniors, Women and Young People (BMFSFJ) in 2004. Since then, however, no new figures have been collected, as can be seen on the German Bundestag page relating to the debate on the motion by the parliamentary faction Die Linke entitled “Gewalt an Frauen und Mädchen systematisch bekämpfen – Grundlagen zur erfolgreichen Umsetzung der Istanbul-Konvention schaffen” (Systematically combating violence against women and girls – laying the foundations for the successful implementation of the Istanbul Convention) (19/14380). According to the faction, “… owing to a lack of data there is no overview of gender-based violence that encompasses all forms of violence against women and girls. By ratifying the Istanbul Convention, however, Germany is obliged to collect such data.” The Istanbul Convention, as ratified by Germany, came into force as federal law on February 1, 2018. It obliges Germany to take comprehensive measures to prevent and eliminate violence against women and domestic violence.
In a report published in September 2023 on partner violence, the German Federal Criminal Office concluded as follows: “A statistical analysis of the data on partner violence shows that violence in existing and former partnerships in Germany has increased in recent years. Even though there has been a decrease from the peak levels of the previous year, an analysis of the recorded number of victims in the last five years reveals an overall increase of 3.4% (2019: 141,792 persons; 2020: 148,031 persons; 2021: 143,604 persons). (Source)
The current legal situation
The current sexual offences law in Germany, the law to improve protection of sexual self-determination, came into force on November 10, 2016. Since then, the principle of “No means no” has been applied. Part of this law is Section 177, Paragraph 2, which reads as follows:
(2) Likewise, any person who performs sexual acts on another person, or who causes another person to perform sexual acts or who uses a person to perform sexual acts on or suffer sexual acts by a third party is punishable if
1. the perpetrator exploits the incapacity of the person to display or express their opposition;
2. the perpetrator exploits the fact that the person is significantly restricted in their ability to display or express their opposition on account of their physical or mental condition, unless the perpetrator has assured themselves of the consent of that person;
3. the perpetrator exploits an element of surprise;
4. the perpetrator exploits a situation in which the victim is threatened with harm if they resist, or
5. the perpetrator has coerced the person to perform or suffer sexual acts under the threat of harm.
The problem with the updated sexual offences law is that the principle of consent – a clear “only yes means yes” – is not enshrined in it. Despite subsection 2 stating “unless the perpetrator has assured themselves of the consent of that person”, it is highly questionable as to how a person who “is significantly restricted in their ability to display or express their opposition on account of their physical or mental condition” can be capable of giving their consent at all. This seems to be highly contradictory. Although people who cannot express a clear “no” because of knockout drops, catatonia, shock-induced paralysis, etc. are covered by this subsection, a clear a clear notion of consent such that any non-consensual sexual intercourse amounts to rape is simply missing.
Amnesty International also came to this conclusion in its 2018 report “Right to be free from rape – Overview of legislation and state of play in Europe and international human rights standards – Amnesty International – Index No: EUR 01/9452/2018”: The amended legislation, however, does not focus on the absence of consent as such but on the victim’s expression of their refusal to engage in the sexual act. The “no means no” model is problematic as it implies the existence of consent by default, in every situation where there is no express refusal to engage in a sexual act, as opposed to interpreting consent as active participation and/or affirmative expression.” as opposed to interpreting consent as active participation and/or affirmative expression.”“ (Original Quote: „The amended legislation, however, does not focus on the absence of consent as such but on the victim’s expression of their refusal to engage in the sexual act. The “no means no” model is problematic as it implies the existence of consent by default, in every situation where there is no express refusal to engage in a sexual act, as opposed to interpreting consent as active participation and/or affirmative expression.”)
Supplementary legislation
Seit Juli 2018 gilt in Schweden ein neues Sexualstrafrecht, das sogenannte „Einverständnisgesetz“, auf Schwedisch „Samtyckeslag“. Nach diesem neuen Gesetz kann es nicht mehr als Zustimmung gedeutet werden, wenn sich Partner*innen passiv verhalten. Das Prinzip lautet »Nur Ja heißt Ja« – das bedeutet, dass Partner*innen auf verbale oder nonverbale Weise sein Einverständnis zum Ausdruck bringen müssen.
In her article “Only yes means yes – how a new consent culture is emerging in Sweden”, Birthe Berghöfer cites Olivia Björklund Dahlgren, chair of the organisation Fatta: “Instead of simply criminalising a certain behaviour, the law aims to establish a new norm in society.” Berghöfer also writes that the Social Democratic Prime Minister Stefan Löfven is also interested in a fundamental change. According to the government’s draft law, the need for consent sends “a clear and normative message and can thereby influence societal values.” The consent law is therefore a ground-breaking way to deal with sexualised violence. In many countries, sexual offences legislation still does not meet the standards of the Istanbul Convention on preventing and combating violence against women. According to Berghöfer, the law often recognises rape only if coercion, violence or the threat of violence is involved or if the victim is particularly susceptible owing to drunkenness or physical impairment. (Source)
Ein weiterer wichtiger Aspekt ist die Frage der Verantwortung. Bei der derzeitigen Gesetzeslage liegt die Verantwortung alleine beim Opfer: Es muss nachweisen können, dass es sich entweder gewehrt hat, deutlich Nein gesagt hat oder zu beidem aufgrund des körperlichen oder psychischen Zustands in der Bildung oder Äußerung des Willens erheblich eingeschränkt war. Der Richter Klaus Haller, der andere Richter*innen und Staatsanwält*innen in Sachen Opferschutz schult, sieht gerade bei Sexualdelikten große Wissenslücken bei seinen Kolleg*innen (Quelle: Sendung „Vergewaltigt – Wir zeigen an“ WDR, ARD Mai 2018). Um dem unzulänglichen Opferschutz bei Sexualdelikten entgegenzuwirken, ist es wichtig, dass die Verantwortung nicht beim Opfer, sondern bei den Täter*innen liegt. Es obliegt dann nämlich deren Verantwortung, sich der Zustimmung und des Einverständnisses zu versichern.
Our aim is for Germany to follow the example of Sweden and to amend its current sexual offences law to include the consent principle of “only yes means yes”. This almost happened at the start of February 2024 when the EU agreed on a new directive to combat violence against women. However, it did not include EU-wide standardisation of the offence of rape based on the consent principle of “yes means yes”. This would have been an important historic step but unfortunately the chance was missed because of states such as Germany, France and Hungary. The German Minister of Justice, Marco Buschmann (FDP), of all people, ensured that Germany retains a sexual offences law without the principle of consent. Other countries are much more progressive. The principle of consent is already enshrined in law in the following European countries: Belgium, Croatia, Cyprus, Denmark, Finland, Greece, Ireland, Iceland, Luxembourg, Malta, Netherlands, Slovenia, Spain, Sweden and the UK (Sources: SZ & Amnesty International).
We have been fighting for a number of years for Germany to join these countries. Sadly in vain so far. Please support our efforts. Sign the “Yes means yes” petition and share it far and wide.