Court decisions on allegations of harassment are unfortunately sometimes relatively arbitrary, which is also due to the fact that relatively few higher court decisions have been available in the border areas of the “new” sexual criminal law since 2016. It is very dangerous to be exposed to such an accusation as an accused or defendant, as the risk of a wrong or even arbitrary verdict is particularly high here.
The problems of proof in cases of “sexual assault” and “sexual harassment” are obvious, especially when, as is often the case, it is one person’s word against another’s. It is hardly permissible to base a verdict on whose story is “somehow more plausible”. For this reason alone, public expectations of a higher conviction rate, fuelled by an irrelevant media debate, are naive – and very dangerous. Experience has shown that in such cases in particular, quite a few courts will contrary to the law, decide against the accused in cases of doubt rather than in his favour. Unfortunately, the courts are not immune to the increasingly aggressive and irrelevant prejudgment of real and alleged “sex offenders” by the media and society in recent years.
What many people do not know: In cases that appear objectively dubious, it is quite possible for a court to convict the accused anyway!
However, the court must at least in a comprehensible manner conclude from the external circumstances of the case presented in the trial that the victim’s will was objectively recognizable, and above all the defendant’s intent (perpetrator’s will), and present and justify all of this in the written judgment without legal error. This is not an easy task and is vulnerable to the verdict being overturned on appeal or revision, which is why a well-considered and good defence strategy is necessary to remind the court of the paramount constitutional importance of the principle of “in case of doubt, for the accused”.
The reasons for convictions and/or penalties in sexual crimes are unfortunately not always appropriate, but often derive from a misunderstood protection hysteria and a very high socio-political pressure to condemn. At the same time, the accused of a sexual offense also faces serious extrajudicial consequences, such as public exposure, inclusion in police “sex offender files”, a long-term entry in the criminal record or serious effects on professional and private life as well as consequences of stays abroad (USA). Many of the social disadvantages with veritable pillorying effect remain even if the proceedings end with a dismissal or acquittal – “there could still be something in it”, is often said in an almost perverse reversal of the presumption of innocence.
A central point for successful acquittal defense in the case of false accusations is to clarify whether the report is a planned lie, a subjectively perceived as true but objectively incorrectly remembered misconduct, a “white lie” due to social pressure to justify itself or the result of intensive influence. It is not uncommon for it to be a combination of all of these factors, almost always combined with the fatal attitude that the accused “deserves” punishment – the latter often on the basis of events that are not punishable but are perceived as insulting or morally reprehensible.
The majority of false accusations of harassment are, however, errors or misunderstandings. Due to numerous sources of error in communication and strongly differing personal moral and boundary concepts in the interpersonal area, ultimately no rigid line can be drawn between non-punishable behavior and punishable harassment.
The basis for criminal prosecution in such cases is often either incorrect conclusions by the victim or the law enforcement authorities, different individual boundaries for “still acceptable” behavior and sometimes simply the desire to punish supposedly “offensive” behavior. Typical cases include alleged “harassment” in the workplace where returned compliments are misunderstood, failed attempts at approaching someone in an initially friendly mood, verbal innuendo that is perceived as inappropriate (“catcalling”), erroneous assessments of one’s own perceptions (naked bather reported as an “exhibitionist”) or even confusion, especially in connection with celebrations and alcohol (for example, when the wrong person is “recognized” as the alleged groper in a confusing party situation).
In short: the number of case studies in which the alleged victim “feels” sexually attacked, but the accused either did not recognize this or did not intend it, is virtually limitless. The reason for the criminal complaint is often misguided communication, sometimes also moral but non-punishable misconduct.
Even if the accused in these cases has often not committed any criminal offense, the danger of such accusations should not be underestimated! The police and public prosecutor’s office often first initiate a complex criminal investigation in which acquaintances, work colleagues and other people from the environment of the accused and the alleged victim are questioned. Even the accusation of a sexually connotated crime can prove to be socially and professionally devastating.
Conversely, however, there can also be significant proof problems on the part of the accused, especially if – as is often the case in sexual criminal law – previous advances, mutual interest or other sexual advances took place, but this cannot be proven – because it is one’s word against another’s and the other person denies it, has perceived it differently or has misunderstood it!
It should not be underestimated that even relatively “harmless” allegations of sexual misconduct can lead to significant professional problems. For example, purely verbal sexual harassment, e.g. through sexist jokes or suggestive catcalling, is not (yet) punishable, so at least there is no risk of prison sentences or long-term entries on the criminal record. However, the situation is different with the impending employment law consequences: Even behavior that is neutral in terms of criminal law can have serious consequences in the workplace, and often the mere accusation is enough for a hasty “suspicion-based dismissal.”
