Sexual Abuse
Criminal Defense Lawyer Munich
Attorney for Criminal Law Munich

Sexual abuse of children, § 176 StGB

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The accusation of sexual abuse is most often made in relation to children. In Germany, “children” in the legal sense are all people under 14 years of age. The (protective) purpose of criminal liability is the undisturbed sexual development of children. Their sexual self-determination is therefore absolutely protected under criminal law.

From a criminal law perspective, it is therefore fundamentally irrelevant whether a 13-year-old child is already well developed for his age or whether a young person over 14 is more of a “late developer”; the age limit between “child” and “adolescent” is rigidly set at 14 years of age, without any exceptions.
The regulation is no longer applicable for acts committed on the 14th birthday, but persons aged 14 and over may be liable for sexual abuse of young people (see below).

The gender of the perpetrator and the child is irrelevant for criminal liability. Both heterosexual and homosexual acts are included.

It is also irrelevant for criminal liability whether, for example, the initiative for sexual contact came from the 13-year-old child. Any sexual contact with a child is punishable.

Sexual child abuse is punishable by a minimum prison sentence of one year, making it a so-called crime.
This means in particular that a suspended sentence is only possible under special circumstances. The accusation must therefore be taken very seriously!
Furthermore, crimes always involve a case of “necessary defense.” The accused must therefore hire a defense attorney of his choice, otherwise the responsible district court will appoint a public defender during the investigation.

In most (and more serious) cases, the prerequisite for criminal liability for child abuse is that a so-called sexual act must have taken place.

When a sexual act or behavior is ultimately punishable as sexual abuse is examined in the legal examination under the term of the so-called sexuality and seriousness of the respective act. It therefore depends largely on whether the act could be classified as sexual from an objective point of view (sexuality), how long and how intense it is (seriousness) and whether it was sexually motivated (intent).

Sexually significant act

What exactly makes an act a sexual act of significance is not defined by law. In any case, cases in which the act is clearly recognizable as sexual based on its external appearance should be unproblematic. If the sexual character is clear, it is no longer relevant what intentions the person acting (supposedly) has. Objectively clearly neutral acts without any reference to sexuality, on the other hand, are not sexual acts even if they arise from a sexual motive.

In the details, of course, an precise definition of sexuality is hardly possible. In the end, one always refers to the general understanding.

Difficulties arise in cases in which the alleged act is not obviously sexual because it is ambivalent (i.e. ambiguous) based on its external appearance. In this case, it is necessary for the act to be punishable that the accused’s actions are motivated by the intention to arouse or satisfy his own or someone else’s sexual desire. In this respect, the objective framework conditions are again important. An objective observer who perceives all the details of the event is decisive. Accordingly, even an act that is not clear when viewed in isolation can be classified as sexual due to the circumstances of the overall event: for example, exposing a child’s upper body while simultaneously discussing sexual topics; hitting the bottom if the victim had to expose it beforehand; sitting on the victim while simultaneously announcing that he wants to ejaculate; handling cucumbers, bananas, etc., if the sexual reference is clear from body language, facial expressions, etc.

Conversely, the external circumstances can show that, despite touches that are typically classified as intimate, a sexual act is not present – for example, when children who are no longer breastfed but are playing with this process and seeking security suck on a woman’s breast. Undressing the victim alone is also not a sexual act. A sexual act can only occur if the perpetrator exceptionally wants to arouse or satisfy himself by undressing.

Since the protection of children is comprehensive, the following applies to all forms of sexual abuse: the child does not have to understand or perceive the sexual acts! It is enough that the sexual act is capable of endangering the child’s development, so it is also enough that the acts are carried out on a sleeping child. In contrast, sexually neutral acts are not punishable even if the perpetrator attributes sexual significance to them.

The problem with assessing an act as sexual is that socially tolerated (=socially appropriate) physical contact – even in the area of ​​the genitals – occurs much more frequently with children than with adults, such as grabbing a small child between the legs to help them climb a climbing frame or accompanying them to the toilet or shower. In such cases, however, the act usually lacks the necessary objective sexual relevance. This is because, based on the relevant external appearance, this is normal behavior for adults when dealing with children (of course depending on the age of the child/young person). In any case, acts that cannot constitute a threat to the child’s undisturbed sexual development and are irrelevant with regard to sexual self-determination must be ruled out from a criminal law perspective: for example, a kiss on the cheek; a fleeting and insignificant touch of the breast, buttocks or thighs over clothing.

Within the framework of the interpretation of sexuality, it naturally depends very much on who is carrying out the act: parents, for example, will be granted a different (more extensive) physical contact than outsiders or even complete strangers. In any case, there is no significance if the contact is only brief or insignificant for other reasons.

On the other hand, it should be noted that in the case of children, the requirements for the significance of the sexual act towards adults are greatly reduced by case law, as children are less able to reject sexual advances due to their age and impartiality. The examples from case law vary greatly, however: in individual cases, on the one hand, mutual touching of the tongue was already considered sexual abuse, on the other hand, the offence was denied if the child was asked to spread their legs in underwear.

And this brings us to the core problem of interpreting the sexual abuse regulations and the reason why it is essential to consult an experienced defense attorney when faced with such an accusation: It is often a matter of interpretation in which context the same act is classified as sexual and therefore punishable!

Knowledge and willingness of the perpetrator of the sexually significant act

However, for any criminal liability for sexual abuse, the perpetrator must have acted with intent. A specific intention is not required – it is not important whether the perpetrator wants to be sexually aroused by the act or whether he is acting for completely different reasons, for example if the act is intended to be a demonstration of power. Even morally neutral motives such as artistic purposes or jokes do not cancel out the classification of an act as sexual. Because for the protection of the undisturbed sexual development of children, it ultimately does not matter what reasons the perpetrator has for acting. However, the accused must be aware of the sexual significance of his actions, otherwise he will not be punished.

The perpetrator must at least consider the sexual significance of his actions to be possible and accept this sexual effect when carrying out the act. Overall, however, intent is only ruled out under unusual circumstances, for example if the perpetrator fails to recognise which body parts are involved during physical contact.

However, knowledge of the victim’s childish age (i.e. 13 years and younger) is also essential for intent. However, anyone who was unaware of the age but indifferent to it is also committing an offence. However, the prerequisite is that the perpetrator is aware of the realistic possibility that the child is under 14 years old. He must therefore have thought of this possibility; if he has not thought about the child’s age at all, there is no conditional intent. The mere fact that he has known the victim for a long time cannot be used to conclude that the act was intentional; Rather, physical development and appearance at the time of the crime must also be determined, as well as the specific level of knowledge of the accused. If the victim has given the accused a higher age, this can be exonerating – although an obviously incorrect age does not automatically eliminate intent.
This also applies in the opposite direction: If the perpetrator mistakenly believes that the other person is not yet 14 years old, even though they are older, this is a punishable attempt!

Serious sexual abuse of children, § 176c StGB

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Serious sexual abuse of a child is punishable by imprisonment of at least 2 to 15 years. Suspended sentences are only possible in very specific exceptional cases, for example in the case of a confession with the implementation of a victim-offender mediation.

The most common use case is the performance of sexual acts that involve penetration of the body.

Sexual abuse of children without physical contact, § 176a StGB

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The sexual abuse of a child without physical contact is punishable by imprisonment from 6 months to 10 years.

In practice, the most significant are sexually motivated influences on a child through written material, telemedia or pornography on the Internet (“cyber grooming”) and the performance of sexual acts in front of a child.

When performing sexual acts in front of a child, physical presence is not required. However, the perpetrator must be guided by the child’s perception of the child. It is therefore not enough if sexual acts are only occasionally performed in the presence of a child without the child being subjectively involved in the event – ​​as is the case, for example, with sexual acts between two adults in cramped living conditions and the risk of being observed by a child.

When it comes to criminalizing sexual acts in front of a child, the same applies that these must be “significant” sexual acts that the perpetrator performs either on himself or on a third person. In particular, when performing (supposedly) exhibitionistic acts in front of children, the performance of a significant sexual act is often hastily affirmed. It is often completely overlooked that the term exhibitionistic act also includes sexualized behavior below the threshold of significance.

On the other hand, less strict standards apply to children and young people when it comes to the significance of the sexual act. However, in the case of very low-threshold “acts” such as mere nudity in front of a child, it cannot be assumed without further ado that the act is “significant” exhibitionistic; in such situations, it is also often difficult to prove intent.

Anyone who induces a child to perform sexual acts on themselves or to adopt an unnatural sexualized position (“posing”) is also guilty of sexual abuse of a child without physical contact. The simultaneous physical presence of the perpetrator is not necessary for this, so that corresponding contacts over the Internet are also punishable. It is also not necessary for the sexual acts of the child carried out at the instigation of the perpetrator to be immediately perceptible to the perpetrator or another person. If the perpetrator records the incident, this also constitutes (and greatly increases the penalty) the production of child pornography.

However, only intentional actions are punishable here. In particular, the accused must know the age of the child. In order to act with intent, it is essential to know that the victim is a child (i.e. under 14 years old). However, anyone who was unaware of the child’s age but was indifferent to it is also committing an offense. However, this does not necessarily have to be the case with anonymous chat acquaintances on the Internet.

It is often difficult to prove that the accused knew the child’s age, especially in the case of crimes committed on the Internet. The parties often only knew each other briefly via a communication channel and often never met in person. Many children or young people also deliberately pretend to be older, sometimes in order to comply with the terms of use of certain communication platforms. The law enforcement authorities then try to construct intent with regard to age from inferences and circumstantial evidence. This is where a good defense must begin. The principle of doubt requires a clear explanation, which in individual cases will be difficult to achieve without reasonable doubt as to the suspect’s intent.

Finally, the (initial) consultation in criminal law also serves as a basis for deciding whether the lawyer called is “the right one”, be it in terms of competence and experience or in terms of interpersonal “chemistry”.

Our firm’s spectrum therefore includes offering those seeking legal advice comprehensive (initial) advice on criminal law. On this basis, we want to provide you with the basis for making a decision, to weigh up a possible further assignment or to be able to assess how the respective prospects of success of engaging a lawyer should be assessed.

Bring all case-related documents with you to the initial consultation, in particular letters from the judiciary or the police: e.g. indictment, penal order, summons for questioning, search warrant, arrest warrant (for relatives) and records. If possible, outline the facts in advance as they occurred from your point of view. The lawyer and his employees are legally obliged to maintain absolute confidentiality even during the initial consultation!

The most objective assessment of the case can only be guaranteed if the lawyer is as fully informed as possible (especially if he is not yet familiar with the investigation file).

Precisely because criminal proceedings provide for such a wide range of possible scenarios and, above all, a great deal of discretion, the lawyer’s competence and experience are essential – similar to that of a doctor. In criminal law, success depends on the choice of lawyer. Hardly any other area of ​​law has as many different consequences and variants of the termination of proceedings as criminal law.

The consequences of criminal proceedings or even a conviction can be serious in individual cases: there is a risk of long-term entries in the certificate of good conduct and official databases, loss of driving, business and other reliability-related permits, as well as problems with work and entry into other countries such as the USA.

In hardly any other area of ​​law can the course for the outcome be set as decisively by competent legal representation as in criminal law!

Cybergrooming – sexual abuse of children via the Internet § 176a StGB

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The person affected usually finds out that they are the accused in a “cyber grooming” case when computers and cell phones are used as part of a Surprise police house search can be confiscated as evidence. You can also be the target of investigators without being particularly careful, for example if parents or teachers have found a suspicious chat on the child’s cell phone, which does not indicate that the child had previously pretended to be significantly older on another chat platform.

Anyone who influences a child using written material or information or communication technology is guilty of child abuse through so-called “cyber grooming“. This includes any type of contact via telemedia, be it chats, emails, text messages, phone calls or video transmission.

Any contact made with the intention of motivating the child to perform any sexual acts on (or in front of) the perpetrator (or third parties) is punishable. The content of the communication does not have to be sexual; even seemingly harmless conversations are sufficient for the offense. The intention is enough; actual sexual acts do not have to occur. On the contrary, according to Section 176b of the German Criminal Code, anyone who uses content to influence a child in order to prepare for later sexual offenses against the child is committing a criminal offense.

Accordingly, anyone who moves in chat rooms, forums or communities that are usually mainly frequented by children or young people can quickly come under suspicion.

Of course, in the case of objectively harmless chat content, it will not be easy to prove the (supposed) sexual intent.

In more “age-neutral” chat environments, proving that the chat partner is identifiable as a child under 14 and/or that there is intent to do so is often difficult in practice. Many children or young people deliberately pretend to be older on the Internet, sometimes in order to comply with the terms of use of the relevant dating platforms. Even if pictures are exchanged, it is not always easy to determine this based on physical appearance alone, especially since many children or young people also try to look as “grown-up” as possible in the pictures they use.

However, it is sufficient if the perpetrator accepts that his chat partner is a child. However, this cannot be assumed without further ado in the case of people under 14 who look older and also pretend to be older. The law enforcement authorities then often try with all their might to construct the (alleged) intent regarding age from inferences and evidence.

This is where a good defense must begin. The principle of doubt requires a thorough investigation, which in individual cases will be difficult without reasonable residual doubts about the suspect’s intent. If the suspect merely assumed that his chat acquaintance was young (14+), most acts are either not punishable or are punishable by significantly less severe penalties (e.g. purchasing youth pornography when receiving corresponding images).

Since any contact made with the intention of motivating a child to perform sexual acts is punishable, an attempt is punishable even if the chat partner is only a child in the perpetrator’s imagination. The police therefore sometimes use undercover investigators who pose as children on the relevant chat platforms and log the IP address of the chat partner when making contact in an offence-based manner in order to track down suspects without putting real children at risk of abuse.

Any accusation of child abuse is viewed very negatively in the public eye and can lead to massive personal and professional disadvantages if it becomes known. Therefore, an experienced defense must aim to avoid a public court hearing as early as possible. It therefore makes sense to seek legal advice as soon as relevant investigations become known – possibly after or during the house search that is almost unavoidable with this accusation. It should be borne in mind that in most cases it is not advisable to provide information without first consulting a defense attorney – especially if the police in such cases are trying to use the shock effect of the search to elicit potentially incriminating information on the matter or a confession from the person concerned.

Finally, the (initial) consultation in criminal law also serves as a basis for deciding whether the lawyer called is “the right one”, be it in terms of competence and experience or in terms of interpersonal “chemistry”.

Our firm’s spectrum therefore includes offering those seeking legal advice comprehensive (initial) consultation in criminal law. On this basis, we want to provide you with the basis for making a decision, to weigh up a possible further assignment or to be able to estimate how the respective prospects of success of engaging a lawyer should be assessed.

Bring all case-related documents with you to the initial consultation, in particular letters from the judiciary or the police: e.g. indictment, penal order, summons for questioning, search warrant, arrest warrant (for relatives) and records. If possible, outline the facts in advance as they occurred from your point of view. The lawyer and his employees are legally obliged to maintain absolute confidentiality even during the initial consultation!
The most objective assessment of the case can only be guaranteed if the lawyer is as fully informed as possible (especially if he is not yet familiar with the investigation file).

Precisely because criminal proceedings provide for such a wide range of possible scenarios and, above all, a great deal of discretion, the lawyer’s competence and experience are essential – similar to that of a doctor. In criminal law, success depends on the choice of lawyer. Hardly any other area of ​​law has as many different consequences and variants of the termination of proceedings as criminal law.

The consequences of criminal proceedings or even a conviction can be serious in individual cases: there is a risk of long-term entries in the certificate of good conduct and official databases, loss of driving, business and other reliability-related permits, as well as problems with work and entry into other countries such as the USA.

There is hardly any other area of ​​law in which the course of the outcome can be set as decisively by competent legal representation as in criminal law!

Penalties for convictions for child abuse

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If a person is convicted of child abuse, the sentencing imposed by the courts is comparatively high.

This is all the more true as the current debate about sexual offenses has led to an extremely heated social atmosphere. It is not unusual for the public prosecutor to demand prison sentences at the upper end of the penalty range even for confessed, repentant offenders, and the courts sometimes impose these sentences. Prison sentences of several years, up to double figures, are not uncommon, and repeat offenders also face permanent preventive detention. A confession should actually be seen as a massive mitigating factor if and because it spares the victim from having to be questioned as a witness in court, which could be incriminating.

In legal theory, however, denying the crime should not result in a harsher punishment, even if the victim has to be questioned several times and is therefore particularly burdened. In practice, however, denial is ultimately sanctioned, and very severely, via the highly positive effect of a confession. A relatively mild sentence can almost only be achieved if the victim is not expected to give evidence in court. This is also why it is so important to have competent advice. It is a decisive decision as to which path the defense takes in such cases, especially when a prison sentence is on the table.

An experienced defense will work towards the court considering mitigating circumstances, especially in the case of a confession.

In individual cases, a lesser degree of wrongdoing and guilt compared to other cases can certainly be taken into account as a mitigating factor when determining the sentence. This can be the case if children with sexual experience close to the age of consent have actively influenced the accused, in the case of very young people’s first love affairs, or in the case of a relatively low level of crime. Such factors may first have to be worked out in court by the defense. Furthermore, aspects that the public prosecutor’s office considers to be to the accused’s detriment can often be relativized to at least a certain extent by a good defense.

A very important factor in sentencing is the seriousness of the sexual act(s), for example if particularly intense and/or degrading sexual practices were carried out or if the sexual act was painful for the victim. The concrete danger of psychological or physical harm or even its occurrence can also be considered an aggravating factor, but not the abstract possibility of harmful consequences, since this is what makes any sexual act involving children punishable in the first place. Conversely, the absence of developmental disorders or psychological damage should have a mitigating effect.

Even if the offence took place a long time ago, this usually has a mitigating effect, and the (more lenient) criminal laws in force at the time of the offence must also be applied.

However, it is irrelevant for the assessment of the sentence whether the child was the victim of a heterosexual or homosexual act. Repeatedly committing an offence against the same victim does not generally result in an increased sentence, especially since this circumstance must be taken into account when determining the so-called total sentence. However, it is incorrect to derive from this that the victim is accustomed to it or is less guilty. Moreover, the consideration of further sexual assaults requires that they have been established in accordance with the procedure and in a concrete manner; mere suspicion is not sufficient, even in the context of a series of offences. Each individual offence must be proven to the full conviction of the court.

A child’s young age can have an aggravating effect on the sentence if it results in a particular burden as a result of the offence. An aggravating effect is also if the offender has violated a position of trust. The disreputable nature of the act is also increased if the offender has used coercive means. It is not permissible to increase the penalty if the child did not give the offender any “understandable reason” to commit the crime, if the offender sought to satisfy his selfish sexual needs in the middle of the night, or if the safety of the public or the high number of unreported cases require a higher penalty for general preventive reasons.

A mitigating effect is if the sexual act only slightly exceeds the threshold of seriousness. In practice, this is very often an important criterion for sentencing. However, it is irrelevant for the criminality of the behavior as sexual abuse of children that the offender did not use violence. Injustice and guilt also weigh less in the constellation of a reduced psychosocial gap between victim and offender. In principle, it cannot have a significant impact on the severity of the penalty if the initiative for sexual contact comes from the child, because this is not an expression of legally relevant self-determination. The situation is different when a victim who is about to turn 14 and already sexually experienced meets a perpetrator who is only slightly older. For the same reason, a love affair between a child just below the age of consent and an adolescent perpetrator usually justifies a significantly lighter sentence. In the two cases mentioned above, it is even possible to waive punishment, Section 176 Paragraph 2 of the Criminal Code. In addition, practice takes relevant sexual experience with older children into account as a mitigating factor.

In this context, however, the criminal energy that the perpetrator must expend to commit the crime should not be completely ignored. And this is less if the perpetrator does not have to overcome the child’s resistance.

If the crime involves penetration of the body and is a case of serious sexual abuse, the minimum prison sentence is 2 years. Since a suspended sentence is only possible for prison sentences of up to 2 years, a conviction for serious sexual abuse almost inevitably leads to a prison sentence. The maximum sentence is up to 15 years. Courts often hand down very harsh sentences in this case, similar to those for “simple” sexual abuse.

It requires a lot of skill and experience on the part of the defense to avoid such punishments and, if necessary, to still enable a suspended sentence. To do this, it is necessary to prove and highlight all exculpatory factors. Another way to break the critical sentence range of at least 2 years imprisonment and enable probation can be a victim-offender mediation. Initiating such a mediation also requires a lot of negotiating skills. If it succeeds, it can often be the last hope before an impending prison sentence or at least significantly reduce the sentence.

All of these ways to avoid a high sentence require a well-considered, strategically thought-out approach by the defense. Only specialists in the field of sexual offenses have the necessary experience to set the right course in each specific individual case.

There is hardly any offense where the sanctions in court vary so widely as in the case of sexual abuse of children. The sentencing can also be significantly influenced by the right defense. Because post-crime behavior and future prognosis are of particular importance in this crime, an accused can do a lot during criminal proceedings to create the conditions for a lenient punishment – for example, making their own efforts to reach a victim-offender mediation or self-determinedly starting suitable sex therapy.

Finally, the (initial) consultation in criminal law also serves as a basis for deciding whether the lawyer you have called is “the right one”, be it in terms of competence and experience or in terms of interpersonal “chemistry”.

Our firm’s spectrum therefore includes offering those seeking legal advice comprehensive (initial) consultation in criminal law. On this basis, we want to give you the basis for making a decision, to weigh up a possible further assignment or to be able to estimate how the respective chances of success of engaging a lawyer should be assessed.

Bring all case-related documents with you to the initial consultation, in particular letters from the judiciary or the police: e.g. B. Indictment, penalty order, summons for questioning, search warrant, arrest warrant (for relatives) and records. If possible, outline the facts in advance as they happened from your point of view. The lawyer and his employees are legally obliged to maintain absolute confidentiality even during the initial consultation!

An assessment of the case that is as objective as possible can only be guaranteed if the lawyer is as fully informed as possible (especially if he does not yet know the investigation file).

Precisely because criminal proceedings provide for such a wide range of possible scenarios and, above all, great scope for discretion, the lawyer’s competence and experience are essential – similar to that of a doctor. In criminal law, success depends on the choice of lawyer. Hardly any other area of ​​law has as many different consequences and variants of the termination of proceedings as criminal law.

The consequences of criminal proceedings or even a conviction are serious in individual cases: there is a risk of long-term entries in the certificate of good conduct and official databases, loss of driving, business and other reliability-related permits, as well as problems with work and entry into other countries such as the USA.

In hardly any other area of ​​law can the course for the outcome be set as decisively by competent legal representation as in criminal law!

Sexual abuse of wards, § 174 StGB

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Unlike child abuse, sexual abuse of wards only affects people who have a special relationship with the perpetrator. Accordingly, the age of consent (i.e. up to which age the abuse is punishable) is significantly higher than for sexual abuse of children.

Sexual abuse of wards requires that the person be entrusted in the sense of an educational, training or care relationship. The performance of sexual acts of any kind is punishable by such people under the age of 16. In the case of those under protection between the ages of 16 and 18, there must also be either a specific abuse of an upbringing, training, care, service or employment relationship and the associated dependency, or the victim must be either the victim’s own child or an adopted child.

As with child abuse, the prerequisite for criminal liability here is the sexuality and seriousness of the respective act.

The criminality of the alleged behavior therefore depends on whether the act is objectively classified as sexual (sexuality), how long and intense it was (seriousness) and whether it was sexually motivated (and thus intentional).

In this case, the criteria presented for the sexual abuse of children (see above) apply, although in the case of those under protection, it must be noted that the seriousness threshold is generally set higher with age.

Given the very broad scope of the criminal provision for sexual assault (Section 177 of the German Criminal Code), there are potential overlaps in many typical cases, for example when trainees tolerate sexual acts out of fear of operational consequences and this is deliberately exploited by the perpetrator. In such constellations, sexual assault is the much more serious criminal provision, which has reduced the practical significance of Section 174 of the German Criminal Code.

Due to the massive social prejudgment of real or alleged sex offenders, there are more and more false reports and false suspicions, especially in connection with apprenticeships. Because even if the allegations cannot be proven in the end, the employment law consequences for the person affected are usually fatal, while the alleged victim can explain poor work performance by the suffering caused by the alleged abuse.

But especially if you are confronted with false accusations in your professional environment, you should immediately consult a specialist lawyer, no matter how implausible the accusations may seem to you – the risk of serious professional consequences, including immediate loss of your job, is particularly high here!

However, if sexual contact with a person under your protection does occur, then in the case of 16-18 year olds it must still be examined whether this really came about by exploiting the dependent position. However, case law is taking a relatively hard line here – not least because of the overall stricter system and interpretation of sexual criminal law: If the external facts are established, the accused will generally simply be accused of “exploitation” unless there are strong counterarguments (for example, strong initiative on the part of the person under your protection, a relationship completely unrelated to work, this in conjunction with a rather weak dependent position). Sexual interaction with a person under the age of 16 is always a criminal offense.

The criminal abuse of a person under the age of 16 results in severe sanctions. For sexual acts involving physical contact, the penalty range starts at three months’ imprisonment and goes up to five years. A fine is therefore only considered in rare exceptional cases and a few legal “tricks” are required to make it legally possible at all.

Particularly in the case of abuse of a training relationship, the specific nature of the dependency relationship between the perpetrator and the victim can be taken into account in sentencing. Furthermore, the fact that the perpetrator has “degraded” the victim to a sexual object or has made her particularly humiliated can be taken into account as an aggravating factor. In the case of serial crimes, an overall sentence must be formed based on a summary assessment of the perpetrator’s personality and the individual crimes. The relationship between the individual crimes must be taken into account, in particular their connection, their greater or lesser independence, the frequency with which they were committed, the similarity or difference of the legal interests violated and the methods of committing them, as well as the overall weight of the facts to be judged.

In certain cases, in exceptional cases, punishment is possible if the wrongfulness of the crime is minor when taking into account the behavior of the person under protection. This takes into account the scope of the offence in particular with regard to 14 to 16 year olds, according to which any sexual contact with the person under protection is sufficient, regardless of whether the perpetrator has exploited his position in any way or even whether the initiative came entirely from the person under protection. Therefore, punishment can be waived if the injustice is considered to be minor precisely because of the behavior of the person under protection. This is particularly important if a young person who is already able to assess the significance and impact of his actions seduced the perpetrator or knowingly facilitated the crime, and also if a serious romantic relationship exists.

The possibility of waiving punishment is often overlooked or ignored by courts, even in suitable cases. It is up to a good legal defense in suitable cases to work towards such a positive possibility of ending the proceedings for the accused.

Finally, the (initial) consultation in criminal law also serves as a basis for deciding whether the lawyer you have called is “the right one”, be it in terms of competence and experience or also in terms of interpersonal “chemistry”.

The spectrum of our law firm therefore includes offering legal seekers comprehensive (initial) consultation in criminal law. On this basis, we want to provide you with the basis for making a decision, to weigh up a possible further assignment or to be able to assess how the respective prospects of success of engaging a lawyer should be assessed.

Bring all case-related documents with you to the initial consultation, in particular letters from the judiciary or the police: e.g. indictment, penal order, summons for questioning, search warrant, arrest warrant (for relatives) and records. If possible, outline the facts in advance as they happened from your point of view. The lawyer and his employees are legally obliged to maintain absolute confidentiality even during the initial consultation!
An assessment of the case that is as objective as possible can only be guaranteed if the lawyer is as fully informed as possible (especially if he is not yet familiar with the investigation file).

Precisely because criminal proceedings provide for such a wide range of possible scenarios and, above all, great discretion, the lawyer’s competence and experience are essential – similar to that of a doctor. In criminal law, success depends on the choice of lawyer. Hardly any other area of ​​law has as many different consequences and variants of the termination of proceedings as criminal law.

The consequences of criminal proceedings or even a conviction can be serious in individual cases: there is a risk of long-term entries in the certificate of good conduct and official databases, loss of driving, business and other reliability-related permits, and problems with work and entry into other countries such as the USA.

In hardly any other area of ​​law can the course for the outcome be set as decisively by competent legal representation as in criminal law!

Sexual abuse of young people, § 182 StGB

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While any sexual acts are strictly prohibited for children under 14 years of age, sexual contact by and with young people from the age of 14 is generally permitted, regardless of the age of the sexual partner – as long as the sex is consensual and the young person is not entrusted to the sexual partner for upbringing or training. For example, sexual intercourse between a 14-year-old and a 90-year-old is also permitted.

By the age of 16 at the latest, young people’s mental and emotional maturity is usually sufficiently developed to be able to act independently in the sexual sphere. On the other hand, young people are also still in a phase of sexual development or a process of sexual maturation, so that it cannot be assumed that they have unlimited ability to exercise sexual self-determination.

It is therefore a criminal offence to exploit a coercive situation with young people between the ages of 14 and 18, use the sexual services of young people for payment or exploit the age-related immaturity of young people under the age of 16 to carry out sexual acts. The reason for the law is to protect the sexual self-determination of young people under the age of 18 from abusive acts in a situation of coercion or in situations of dependency – ultimately, protection from external control.

Only those involving physical contact can be considered as criminal sexual acts, and the acts must be of a certain significance.

Taking advantage of a situation of coercion, Section 182 Paragraph 1 of the Criminal Code

Sexual acts on young people are punishable in particular if the young person is in a situation of coercion and this is exploited, Section 182 Paragraph 1 of the Criminal Code. A situation of coercion is to be considered to be the existence of a serious, not necessarily life-threatening, emergency that is accompanied by a significant restriction of the options for making decisions and acting, which is why the young person cannot easily escape sexual assault. This definition, which is open to interpretation, not only includes relatively “clear” cases, such as taking advantage of homelessness or severe drug addiction, but theoretically also the exploitation of “minor problems”, such as the fear of sanctions for returning home too late, as well as any negative consequences that depend on the perpetrator.

What exactly is meant by such a predicament is therefore largely left to judicial interpretation, which in turn leads to strong constitutional concerns about the specificity and determinability of such a term and offers another starting point for the defense.

It should be irrelevant whether the perpetrator created the predicament himself or is simply taking advantage of an existing distress. It should also be irrelevant whether the predicament was avoidable for the victim. The same should apply if the victim subjectively imagines or falsely assumes a predicament, although the circumstances that justify an emergency situation do not actually exist.

While taking advantage of homelessness or drug addiction should generally be considered a predicament, there are serious concerns about taking advantage of mere immaterial wishes (such as not letting someone join the school choir). In isolated cases, loneliness or the need for a friendship or a romantic relationship have been assumed to be a predicament, but this should generally be rejected.

Therefore, in the case of criminal investigations into abuse of young people by exploiting a predicament, it is immanently important to make clear the constitutional concerns regarding the specificity, but also the scope of the interpretation of the term “predicament” and to include them in the investigation results. These considerations alone are often enough to convince the court to discontinue proceedings – at least on condition – which of course applies all the more the closer the young person is to reaching the age of majority at the time of the crime.

Only those who consciously exploit the predicament of the young person commit an offence if it enables or at least facilitates sexual contact. Exploitation is also possible through deceit or deception, i.e. if the perpetrator only pretends that he is threatened with exclusion from the club or that he can avoid it.

However, exploitation of a predicament is excluded in the case of love relationships, since in this case no predicament has an effect on the victim’s decision-making and there is no exploitation in the conceptual sense! The same applies to the threat to end the relationship.

Exploitation is also excluded if the perpetrator is not even aware of the victim’s predicament. Due to a restrictive interpretation of the element of “predicament” adopted by case law, this requires at least an act of coercion by the perpetrator to obtain the victim’s consent, so that the sexual act turns out to be primarily determined by someone else.

The age of the perpetrator is also irrelevant, so that a 14-year-old can also exploit the predicament of a 17-year-old and thereby commit a criminal offense!

Sexual acts for payment, Section 182 Paragraph 2 of the Criminal Code

The most common case of sexual abuse of young people is the performance of sexual acts for payment. Anyone who, as an adult, promises a young person between the ages of 14 and 18 money or other assets in return for sex is committing a criminal offence under Section 182 Paragraph 2 of the Criminal Code.

According to the purpose of the law, young people should not be influenced in their decision with whom they have sex by material incentives. Therefore, the Criminal Code not only provides for a comprehensive ban on prostitution by minors, but goes even further: any sexual contact for payment is punishable. This is intended to prevent the necessary development of an independent sexual identity from being jeopardised by the experience of sexuality as a “commodity for sale” in the sense of give and take. In addition, young people generally do not yet have the ability to assess and evaluate the risks associated with the practice of prostitution (even on a one-off basis).

Unlike the sexual abuse of young people by taking advantage of a situation of duress, the perpetrator of sexual abuse for paid services to a young person can only be someone who is 18 years of age or older. So if a young person gives another young person money for sex, it is not a criminal offense.

The sexual act is carried out for payment if it is in exchange for a financial advantage of any kind. The term “payment” can include any financial benefit, including concert tickets, travel, a place to sleep, sweets, invitations to “McDonald’s”, visits to the zoo or swimming pool, as well as free or discounted provision of riding horses, etc., all fall under the term of so-called “payment”. The amount of the financial advantage is not important here, so the offer of a small snack is sufficient. Conversely, however, intangible advantages (e.g. being on a football team) are ruled out in view of the explicit wording of the law, although they can also motivate a young person in the long term.

In any case, it is necessary that the payment offered at least partly motivates the victim to have the sexual contact requested. In particular, a de facto agreement of “sex for payment” is required, and this agreement must have been made before the relevant sexual contact began! Gifts that are only promised and provided afterwards do not constitute sexual abuse, as they then have no impact on sexual self-determination. The same applies if the person providing the gift expects that a generous invitation could lead to a favorable opportunity for sexual contact – but without making this the subject of a de facto agreement. Likewise, gifts within the context of a steady relationship are not punishable, or if the gift is completely uncoupled from the sexual act (e.g. a birthday present) and is only given as a favor or to maintain contact.
On the other hand, it is sufficient for the act to be punishable if the sexual acts take place in reliance on the promised gift, even if this is not subsequently provided.

The initiative for the agreement on payment can also come from the young victim. Who is to pay the money and to whom is also irrelevant. Anyone who exploits the payment made by a third party is also committing a criminal offence. The victim does not have to receive the compensation themselves if this is the only way they were motivated to have sexual contact.

Although the mere attempt to get a young person to perform sexual acts in return for payment is also punishable, in practice this should only lead to criminal liability if it can be proven to the perpetrator that such a promise was actually made and that the promised attention was actually intended for sex and not for other reasons.

Abuse by exploiting the lack of sexual self-determination, Section 182 Paragraph 3 of the Criminal Code

It is rather rare that people over the age of 14 are generally unable to adequately understand the meaning and significance of sexual relationships and this only occurs under certain circumstances, such as in the case of mental disabilities or developmental delays. However, according to Section 182, Paragraph 3 of the Criminal Code, it can be a criminal offense if the adult perpetrator exploits a “power imbalance” between himself and a young person under the age of 16 to carry out sexual acts. A first indication of the existence of such a “power imbalance” can be a significant age difference between the perpetrator and the victim. In this respect, it must be taken into account that the requirement in Section 182, Paragraph 3 of the Criminal Code is that the perpetrator is at least 21 years old. However, the overall behavior of the perpetrator – independent of the individual acts – must be taken into account in the assessment, which also includes the specific circumstances of the contact and the relationship with the victim.

Intent

The perpetrator must know, or at least consider it possible, that the young person is under the respective age of consent. This cannot be assumed without further ado, especially in the case of fleeting sexual contacts with people over 16, as it is practically impossible to determine between adolescents and young adults based solely on physical appearance in such cases. Many young people also deliberately pretend to be older, sometimes in order to gain entry to discos or nightclubs or to meet the terms of use of corresponding dating platforms. The law enforcement authorities then try to construct intent with regard to age from inferences and circumstantial evidence. This is where a good defense must begin. The principle of doubt requires a thorough investigation, which in individual cases will be difficult to achieve without reasonable doubt about the suspect’s intent.

Sentencing

The sexual abuse of a person under one’s care is punishable in cases covered by Section 182 Paragraph 1 and Section 182 Paragraph 2 with a prison sentence of up to five years or a fine. The abuse of the lack of sexual self-determination in young people between the ages of 14 and 16 (Section 182 Paragraph 3) is only punishable with a maximum sentence of three years.

In practice, the most common cases of Section 182 Paragraph 2 of the Criminal Code involve the provision of sexual services in return for payment. In such cases, the penalties can vary greatly, from small fines to prison sentences. The closer the young person is to reaching the age of majority, the less the immorality of the act and thus the greater the risk of punishment. The protective purpose of the law, which includes the not yet completed maturation process of young people under 18, coupled with the not yet admitted maturity to assess and evaluate the risks associated with the practice of prostitution, is not static, but is subject to age-related development. In this respect, knowledge and experience increase steadily in the age groups between 14 and 18 – and conversely the risk of a lack of ability to make sexual self-determination decreases accordingly. Accordingly, paid sex with a 17-year-old person is punished much more leniently than with a 14-year-old.

In addition to the age of the victim, the decisive criterion is also the question of whether there was a coercive situation with regard to the initiation of sexual contact in exchange for money or whether this decision was made of one’s own free will, and to what extent the accused was aware of this (in each case). In such cases in particular, a good defense can often avert a severe punishment.

Finally, the (initial) consultation in criminal law also serves as a basis for deciding whether the lawyer you have called is “the right one”, be it in terms of competence and experience or also in terms of interpersonal “chemistry”.

The spectrum of our law firm therefore includes offering legal seekers comprehensive (initial) consultation in criminal law. On this basis, we want to provide you with the basis for making a decision, to weigh up a possible further assignment or to be able to assess how the respective prospects of success of engaging a lawyer should be assessed.

Bring all case-related documents with you to the initial consultation, in particular letters from the judiciary or the police: e.g. indictment, penal order, summons for questioning, search warrant, arrest warrant (for relatives) and records. If possible, outline the facts in advance as they happened from your point of view. The lawyer and his employees are legally obliged to maintain absolute confidentiality even during the initial consultation!
An assessment of the case that is as objective as possible can only be guaranteed if the lawyer is as fully informed as possible (especially if he is not yet familiar with the investigation file).

Precisely because criminal proceedings provide for such a wide range of possible scenarios and, above all, great discretion, the lawyer’s competence and experience are essential – similar to that of a doctor. In criminal law, success depends on the choice of lawyer. Hardly any other area of ​​law has as many different consequences and variants of the termination of proceedings as criminal law.

The consequences of criminal proceedings or even a conviction can be serious in individual cases: there is a risk of long-term entries in the certificate of good conduct and official databases, loss of driving, business and other reliability-related permits, and problems with work and entry into other countries such as the USA.

There is hardly any other area of ​​law in which the course for the outcome can be set as decisively by competent legal representation as in criminal law!

Sexual abuse by exploiting a counseling, treatment or care relationship, § 174c StGB

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The offense under § 174c StGB led a shadowy existence for a long time. Especially in the recent past, however, there have been an increasing number of proceedings relating to this suspicion. The breadth of the offence and the many unclear elements mean that for doctors, therapists and other people working in the medical field, any sexual relationship with a patient always carries a serious risk of criminal liability. The Federal Court of Justice has indeed limited the scope of application, particularly in its landmark decision from 2016. Nevertheless, the accusation of abuse is easy to make. Only a competent defence can effectively counteract a massive prejudgment that often has existential professional consequences.

Unlike Section 176 of the Criminal Code (abuse of children) or Section 182 of the Criminal Code (abuse of young people), Section 174c of the Criminal Code also protects adults. Here, too, however, a special need for protection is required, which the perpetrator must exploit for his or her sexual interests. This arises from the doctor-patient relationship, etc., i.e. from the victim’s vulnerable position and the care relationship that the treating or caring person has towards them.

In principle, almost any sexual interaction between a doctor, psychotherapist and their staff with a patient would potentially be punishable, even if it is otherwise completely consensual. Therefore, a further condition for criminal liability is that the existing care relationship must be exploited, i.e. abused.

In a fundamental decision from 2016 following an appeal by our law firm, the Federal Court of Justice clarified that the realization of the other requirements of the criminal law cannot automatically lead to the conclusion that “abuse” has occurred. Just because a doctor-patient relationship exists and sexual acts have taken place, these circumstances alone do not constitute punishable abuse.

There is usually no abuse of the care relationship if there is a serious romantic relationship between a doctor and his patient, if both “meet on equal terms” and/or the treatment relationship is based on a long-term friendship or even an existing romantic relationship.

For an effective defense, the requirement of exploitation of the care relationship often offers the best starting point for obtaining an acquittal. The specific circumstances of the individual case are crucial here. The law enforcement authorities, especially the public prosecutors, tend to hastily assume that the treatment relationship has been abused. Exculpatory factors are often not sufficiently appreciated or simply ignored. It is all the more important that the defense enforces appropriate clarification and ensures that the court cannot ignore this aspect.

If convicted, the accused can expect a prison sentence of three months to five years. The law therefore does not generally provide for a fine. In individual cases, an experienced defense can still result in a conviction of only a fine or a dismissal of the case. Although a prison sentence for a first-time offender is usually suspended, the professional consequences of this offence must always be kept in mind from the outset. It is therefore particularly sensible to commission a specialist law firm to defend you at an early stage when faced with this type of charge.

Schließlich dient die (Erst)Beratung im Strafrecht auch als Entscheidungsgrundlage, ob der angerufene Anwalt „der Richtige“ ist, sei es in Bezug auf Kompetenz und Erfahrung oder aber auch in Bezug auf die zwischenmenschliche „Chemie“.

Zum Spektrum unserer Kanzlei gehört es daher, Rechtssuchenden eine umfassende (Erst)Beratung im Strafrecht anzubieten. Auf dieser Grundlage wollen wir Ihnen die Entscheidungsgrundlage liefern, eine mögliche weitere Beauftragung abzuwägen oder aber auch abschätzen zu können, wie die jeweiligen Erfolgsaussichten einer anwaltlichen Einschaltung zu beurteilen sind.

Bring all case-related documents with you to the initial consultation, especially letters from the judiciary or the police: e.g. indictment, penal order, summons for questioning, search warrant, arrest warrant (for relatives) and records. If possible, outline the facts in advance as they occurred from your point of view. The lawyer and his employees are legally obliged to maintain absolute confidentiality even during the initial consultation!

The most objective assessment of the case can only be guaranteed if the lawyer is as fully informed as possible (especially if he does not yet know the investigation file).

Precisely because criminal proceedings provide for such a wide range of possible scenarios and, above all, great scope for discretion, the lawyer’s competence and experience are essential – similar to that of a doctor. In criminal law, success depends on the choice of lawyer. Hardly any other area of ​​law has as many different consequences and variants of the termination of proceedings as criminal law.

The consequences of criminal proceedings or even a conviction are serious in individual cases: there is a risk of long-term entries in the certificate of good conduct and official databases, loss of driving, business and other reliability-related permits as well as problems with work and entry into other countries such as the USA.

In hardly any other area of ​​law can the course for the outcome be set as decisively by competent legal representation as in criminal law!

Old cases / Statute of limitations

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The statute of limitations in sexual criminal law has also been tightened over the years and in some cases extended retroactively.

Therefore, older versions of the law still have some significance in practice, since changes in the statute of limitations also cover cases that were not (yet) time-barred at the time of the respective change in the law.

Important: The statute of limitations rules are extremely complicated when applied to old cases, i.e. cases that occurred longer ago than the last change in the law. The rules have been changed very frequently (and always tightened) especially in the case of sexual abuse of children. It is often overlooked that cases that are not yet time-barred according to the latest legal situation may have already become time-barred in the past and therefore may no longer be prosecuted despite the extension of the statute of limitations.

Conversely, the now absurdly long statute of limitations of sometimes more than 30 years also cover allegations that can date back to the 1990s. It is doubtful whether such cases can still be solved in a meaningful way – especially in a “word against word” situation – but nevertheless, or precisely because of this, such allegations must be taken very seriously in the current social climate of massive prejudgments when accused of sexual crimes.

Always remember:  The sexual criminal law applicable at the time must always be applied to all allegations.

Since public prosecutors’ offices and courts often only have the most up-to-date legal texts and commentaries, it is particularly important in such situations that the defense attorney points out the inapplicability of the new laws at an early stage.