No Means No And The Burden Of Proof

Today, Germany’s lower house, the Bundestag, will vote on whether to replace a currently wholly inadequate rape law.

The current law defined in Section 177 of the criminal code stipulates that rape only happens when a victim physically protests and the perpetrator threatens or uses violence to have sex.  Current law stipulates that sex it is not rape if the victim pleads for sexual activity to stop or even cries.  In Germany, inappropriate touching is not even a criminal offence at the moment.  Marital rape was not a criminal offence in Germany until the late 1990s.

This is despite the fact that Germany signed the Istanbul Convention making all non-consensual sexual activity a crime.  However, simply being a signatory does not mean that the convention has been ratified in to law.

Attempts had been made to make the law more useful but it was the events of New Years Day in Cologne that really brought focus on what was necessary.

In another case that has sparked an outcry in Germany, two men were exonerated of drugging and raping German model Gina-Lisa Lohfink – despite having uploaded a video of what took place, in which she was reportedly heard saying, “Stop it, stop it” and “no”.  Not only were the men acquitted, but Ms Lohfink was fined 24000 euros for falsely testifying.

A summary of the proposed new laws is this:

  1. Any person who ignores the “obvious will” of the victim could face 5 years in prison.
  2. A spoken “no” has to mean no.
  3. A result of the atrocities in Cologne mean that aggressive sexual attacks that don’t include actual sex will be defined as criminal sexual offenses.

Even the most casual observer will see an improvement in the law if it is passed, but it’s not certain that this will necessarily lead to more rape convictions.  As is the case in most countries, victims can be afraid to go to court.  This is highlighted in the praise received by Brock Turner’s victim for facing her abuser earlier this year.

In Germany it is estimated that only 6% of rapes are reported.  According to a 2014 study of 107 cases by the German association of women’s counselling centres and rape crisis centres (BFF), many of the perpetrators of that 6% currently get away with their crimes.

The nature of what I should imagine is the vast majority of rapes is that there are no witnesses, meaning that it is often one person’s word against the other, and this is why I wonder if the new German laws will go far enough.  The practicality of providing evidence of non-consent is still going to be difficult.

The new laws put a lot of emphasis on the victim’s actions, actually against the intention of the Istanbul agreement which sought to make culpability dependent solely on the actions of the perpetrator.

It is questionable whether a “no means no” law is actually enough to cover the crime it is seeking eradicate and punish.  In many instances a victim may not actually be able to say no or show “obvious will” to not want to have sex.  The suggestion is that a “yes means yes” law as adopted in California would provide a better option.

Yes means yes has its plus points.  Affirmative action is far better than a negative.  Wanting something sets clearer limits than saying what you don’t want and that should make both parties (all parties?!) more comfortable.  It should increase communication and make sex better and more comfortable for everyone concerned.

However, I wonder if it reflects a reality.  I’ve mentioned previously that I find being on the receiving end of even a hug which is not entirely welcomed to be demoralising!  Understanding what someone wants is one thing, but in the throws of lust I wonder how many people ask the question if what they’re doing is actually OK.  And this goes back to the fact that in most cases (OK, I’m making an assumption here) sex is an intimate act between two people in private.  There are no witnesses.

Proof of consent, negative or otherwise, will always generally be one person’s word against another’s until sex becomes a contractual act with two (or more) people bound by a physical tangible agreement cosigned by witnesses.  Way to burst the bubble!

Any movement in the law requiring consent is a significant shift for the better, don’t get me wrong.  It is a definite step forward to protect potential victims of sexual assault.  However, I feel that true justice will be only be found in each and every case when we find a way to reduce the stigma attached to both potential victims and potential perpetrators when a case goes to court.

It’s an interesting thought for me that the act of sex produces more stigma than that of murder.  A defendant cleared of murder will generally be seen as being cleared of murder.  Of course, there will always be those who feel that the accused “got away with it” and “no smoke without fire”, but I see rape cases as producing more emotive responses possibly because the intimacy of the act in loving relationships is something held so dearly by many and the fact that the victim has to live with what has happened and the consequences thereof.

I believe that there is a problem with how people view the legal process, in that they don’t really view it as a process at all.  That’s if they know anything about it anyway because it can be clouded in mystery.  Fundamentally, it is a process that seeks to establish facts against a set of rules to find if a law has been broken, and then apply adequate punishment to rebalance a collective social conscience.  However, as humans we tend to prejudge the outcome and cannot stay open minded.  Guilt or innocence can be attributed before the process even starts.

With rape cases and rape laws, I feel that a burden of proof weighted in favour of either the defendant or the accuser is the potential issue.  As a society, we know what is and what is not acceptable in a certain circumstances.  The job of the legal system as a whole is to get those facts and if there was a way to remove the stigma and darkness around that process we would really move forward in protecting potential victims of unwanted sexual activities.

Unfortunately I realise that that requires a far more fundamental paradigm shift than the changes being proposed by the new German laws.

It was a freezing night and not a single cloud
I had a couple in me so I reached out
And then I heard your voice
Felt you all inside
I prayed for the distance to keep us in line
But there’s things I’ve done you understand like no one else
There’s pain I kept buried deep inside myself
I’ve been saying for forever “hey that’s not me”
But me with you is who I think I’ll always be

Please say no
Please say no
Please say no
Please say no
Say anything you will
Except how you’d have me still
Say anything but no
And I’ll go I’ll go I’ll go

Please Say No by Jimmy Eat World


Comments 2

  1. Knowing nothing about the case you mentioned unti you spoke of it, Germany’s laws on rape obviously suck. BUT the idea that no means no can be a determinate of rape or not isn’t going far enough. The laws need to be drastically changed in ordeer to protect potenial victims. good article.

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