Sexual Harassment
Criminal Defense Lawyer Munich
Attorney for Criminal Law Munich

Uncertainty of the accusations and moral prejudgment

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The criminal provision of “sexual harassment” (§ 184i StGB) is unfortunately very vague and uncertain. This also applies in the borderline area of ​​the (more serious) provision of “sexual assault” (Section 177, Paragraph 1 of the Criminal Code), which is far too often hastily assumed by the law enforcement authorities.

Since a change in the law in November 2016, there has been a “complete” – one could even say “arbitrary” – criminal liability for any conceivable sexual behavior that the legislator deems objectionable. The price of this supposed security is high: instead of objective criteria, the subjective moral sense of the law enforcement authorities is largely left to decide who they believe, what they believe and, above all, what they consider to be punishable. The result is that ultimately almost any person can be punished for supposedly abusive or harassing behavior if, from the perspective of the law enforcement authorities, this appears to be somehow objectionable. It is also difficult to understand why, under current criminal law, groping another person can usually be punished much more severely than brutally injuring the same person.

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 provide you with the basis for making a decision, to weigh up a possible further assignment or to be able to assess the respective chances of success of engaging a lawyer.

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, 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!

It’s almost always one person’s word against another’s

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Witnesses are rarely found in allegations of sexual misconduct, and there is usually no physical evidence. Even if there are traces, these can usually be reconciled with both versions if the suspect claims that the contact was consensual.

One might therefore think that with just one statement against another, there is a “stalemate situation” – who are we supposed to believe? The only logical consequence should actually be a dismissal of the case or an acquittal – after all, there is not enough certainty to be able to pass a guilty verdict.

Unfortunately, courts in this country are not required to specify under which conditions a fact is considered proven or not proven. The judge is completely free to evaluate the evidence and therefore also the assessment of statements and does not have to choose the most favorable conclusion for the defendant, even if there are several possible conclusions.

The judge can therefore convict on the basis of dubious testimony,

although accusations are often false, particularly in sexual offenses. This is not just about conscious false statements for motives such as revenge, jealousy, self-protection or simply bad intentions; in many cases, pseudo-memories, influence, mental illness and autosuggestion are also the cause of false accusations.

But just because a witness claims to be the victim of a crime, a court may not give greater weight to the statements of this person, who is essentially a party (especially in the role of co-plaintiff), than to the defendant’s denials.

Rather, the Federal Court of Justice demands, with good reason, that the witness’s statement be subjected to a special credibility test, especially since the defendant has few options for defense in such cases.

The following are required, among others:

• Analysis of the personality of the witness (assessment of the ability to make a reliable statement)
• Examination of the history of the statement
• Investigation of possible motives for the statement
• Analysis of the quality of the statement (consistency of the statements in terms of content, level of detail, plausibility of the information, clarity and structure of the information)
• Complete overall assessment of all evidence (this also includes evidence outside of the witness statement, such as events and circumstances after the crime)

Court rulings that do not adhere to these requirements required by the highest court are particularly vulnerable to challenge. Experience shows that even few judges adhere to this strict test standard when assessing the truthfulness of statements – assuming they even know it. Unfortunately, legal training has not yet provided any knowledge of how to assess the credibility of witnesses and the credibility of their statements, nor of the correct interrogation methods. Therefore, when assessing “word against word” constellations, a lot of things are regularly done wrong.

Irrelevant assessment criteria:
Irrelevant considerations are often included in the assessment of evidence, e.g. that the alleged victim cried or trembled when giving his statement, thereby underlining the impression of particular credibility – although physical symptoms or behavioral abnormalities such as crying, trembling, nervousness, etc., according to unanimous scientific research, have no evidential value or indication of the judge’s opinion. Circular reasoning is also very popular: for example, that a supposed “lack of enthusiasm to incriminate” (it was “only” harassment and not a brutal violent attack) immediately indicates a lack of intention to make false incriminations and/or that the statement was based on experience.

Misjudgment of one’s own expertise:
Even if courts adhere to the strict catalogue of guidelines for testimony psychology, conclusions are often wrong – and thus also the assessment of evidence.
The reasons for such errors are based on a lack of understanding of the complex subject matter or simply on its incorrect application. Because of a lack of specialist knowledge in memory psychology, perception psychology, social psychology, personality psychology and forensic psychology, lawyers are expected to make decisions about situations in which a degree in psychology and the corresponding specialist knowledge would actually be required.
Nevertheless, one often reads in court rulings that this or that conclusion should be drawn “from a testimony psychology perspective”. Due to a lack of appropriate training in the methodology of testimony psychology, such statements – despite all real or supposed psychiatric or testimony psychology expertise, which a court can (unfortunately) sometimes certify itself – are vulnerable, because a judge is not a psychiatrist or testimony psychologist. No one would take a judge who performs a heart operation himself due to his legal training seriously.

No obtaining of a credibility report:
In court practice, unfortunately, testimony psychology reports are only obtained in exceptional cases to assess the credibility of witness statements, although around 60% of all credibility reports come to the conclusion that false testimony cannot be ruled out!

The “own expertise” that is very often certified by courts in order to avoid the involvement of a statement psychologist is often open to challenge:
The court must call in an expert at the latest when a witness could have problems in perceiving, storing or reconstructing his statement, since only with the help of a statement psychologist can such problem situations be recognized and assessed. The smallest evidence, e.g. due to psychological problems of the witness or because suggestive influences cannot be ruled out as part of therapy or simply because the witness had consumed alcohol at the time in question, then requires an expert assessment – if this is lacking, the verdict is open to challenge.

Incorrect justification of one’s own expertise:
In addition, serious errors are regularly made when justifying the court’s “own expertise” (see above):
The question of whether a court is capable of carrying out a statement analysis that meets scientific requirements must apply in particular to all members of the court, especially to the lay judges.
The prerequisite for any deliberation and decision by a court is that all members appointed to make a decision have sufficient knowledge of the subject matter of the dispute. This is because the responsibility for finding the law lies with all members of the court. In this respect, decisions in which only the professional judges have sufficient expertise are incorrect.
It must therefore be precisely stated to what extent all members of the court have the required expertise – also and above all with regard to the analysis of the quality of a statement or the difficult question of its validity. Since lay judges do not have complete knowledge of the files and rarely have sufficient methodological knowledge, it is practically impossible for all court members to attest to their own expertise.

Failure to check the ability to testify:
In very many cases, courts rush to the criteria for checking the credibility of the evidence developed in the psychology of testimony, such as the level of detail and consistency of a statement, without even considering the ability of a witness for the prosecution to testify in more detail. In this case, a court must first examine whether the witness actually has the ability to

1. perceive the event in question realistically,

2. form a corresponding memory of this perception,

3. be able to distance himself from suggestive influences,

4. be able to distinguish what he experienced from fantasy and dreams,

5. and later recall what is stored in his memory.

In any case, a not insignificant number of witness statements are objectively false – consciously or unconsciously. From a memory psychology perspective, this is almost inevitable because the perception of facts at the time of the experience is subjective, furthermore because the initial storage takes place with the addition of associations, furthermore because the stored information is constantly changed by new impressions and finally because the retrieval and verbalization are subject to further alienation processes. As if all of this wasn’t bad enough (remember again that despite these inadequacies in the testimony of witnesses, a defendant can be locked up in prison for many years), it has been repeatedly shown in recent years that impairing circumstances in human perception led to (victim) witnesses making false, accusatory statements:

• No or reduced ability to give evidence when alcohol consumption
  In particular, if the alleged victim was under the influence of intoxicating or narcotic substances (alcohol?!) at the time the crime was allegedly committed, this will have a significant negative impact on the ability to give evidence, because events that occurred in this state can no longer be (correctly) recalled later, as the normal storage of content in the brain’s long-term memory is prevented.
• No or reduced ability to give evidence as a result of therapy
  A Another point that is often overlooked is that informants who say they have been sexually abused or harassed often go into therapy. However, there is a high risk that memories will mix with the therapeutic measures. Patients are particularly susceptible to suggestions during therapy. The therapist has complete trust in the patient’s statements, the acceptance of which is part of the therapeutic work. Conversely, the patient wants to be able to trust that the therapist will not critically question the statements or even question them completely. In this structure of rational and emotionally intertwined communication, it is hardly possible for the patient to distinguish the sources of his memories.
• No or reduced ability to give evidence in cases of posttraumatic stress disorder
  The problem of posttraumatic stress disorder is even less often considered in court rulings. Selective inattention during the traumatic experience can lead to faulty memories or falsifications, resulting in the loss of specific detailed memories. People tend to remember a trauma as being worse than it actually happened to them. After a traumatic experience, both conscious and unconscious memories can produce new details, which over time manifest themselves in the person’s memory of the event in question and thus have a negative impact on the person’s ability to give evidence.
• No or reduced ability to give evidence due to influences on the statement (auto- and external suggestion)
  A serious error is the failure to take into account suggestive and/or autosuggestive influences. This means that a witness does not report on his or her own perceptions, but adopts or imitates external or self-imagined perceptions.

A large number of empirical studies have investigated which factors and conditions, e.g. B. through which (interview) techniques such suggestive influences are triggered in people and have a distorting effect on memory contents:
1. selective perception of the event, forgetting, etc.
2. conscious self-persuasion,
3. unconscious influences of the person being interviewed,
4. unconscious influences from outside (through subsequent information, interviews, etc..)

However, many lawyers have little idea what to do with these phenomena from the psychology of statements or dismiss them as parapsychological nonsense. There are, however, a number of scientific experiments that prove the problem surrounding suggestion:
For example, test subjects were asked about details that were also the subject of subsequent information by first showing a film about a traffic accident and then dividing them into several groups. One group of test subjects was asked how fast the cars were driving when they collided. For the other groups, the alternative wording used was “when they hit each other”, “… when they collided” and “… when they crashed into each other”. After a week, the test subjects were asked whether they had seen broken glass, even though there was no broken glass or any indication of it in the film. Influenced by the different choice of words, a different severity of the collision was assumed in each case and another detail (broken glass) was implemented in the memory report. As a result, 16% of those test subjects who included the word “crash” in the question reported seeing broken glass. This was only the case for 7% of the “collide” comparison group.
The experiment showed that – guided solely by plausibility considerations – a significant proportion of the test subjects subsequently inserted unreal elements into their memory report and that subsequent specific information has a strong suggestive effect that greatly distorts a person’s memory report. In extreme cases, fictitious elements are also implemented into the statement or there are descriptions of entire events that never took place.

A classic example of inserting events that never took place is the following true case from Berlin:
In a full lecture hall where the lecture is about to begin in a few minutes, it suddenly becomes loud at the lectern. Two men shout at each other, becoming increasingly angry. One of them threatens to slap the other. At that moment the professor comes in and calls out to the students: »Write down immediately what just happened here.« The professor had staged the incident.
Of the many hundreds of students, quite a few wrote that they had »seen« that one of them had actually slapped the other, who then, as some described it, pulled out a pistol and, as some wrote, fired a shot that caused the victim to fall to the ground. But the incident had only happened a few moments ago and the witnesses were trainee lawyers…
The professor wanted to prove to them what they would otherwise probably not have believed: that one can be firmly convinced that one has seen something that did not happen – or as the renowned criminal law expert Klaus Volk puts it: »The brain writes the story – not the eye.« Experimental studies and examples from expert practice in cases of abuse indicate that a change in the statement is even more likely when there is a combination of different suggestive influences.

In particular, support situations involving victim supports, psychotherapists and also interrogators carry the risk that the witness’s statement will be more materially detailed during the court hearing, especially since there is a considerable period of time between the immediate perception of the (disputed) facts and the witness’s interrogation in court, and the longer this period is, the more likely it is that the remaining memory will no longer coincide with the perceived original event. If a court therefore fails to take into account concerns raised about possible suggestion, the verdict is open to challenge.

Errors in checking the quality of the statement:
The actual core of the credibility check is the so-called feature-oriented content analysis. It is based on the thesis that a witness who remembers what actually happened only has to rely on the existing contents of his memory. A false witness has to construct his statement on the basis of his everyday knowledge or his ideas about the alleged crime. This means that it is more difficult for those who give false statements to make a high-quality statement, especially since one must always strive to make the most credible impression possible.

A reality-based statement will – at least according to the thesis of statement psychologists – be, among other things, coherent, very detailed and rather unstructured. And even irrelevant descriptions are no problem for the person who tells the truth (because anyone who remembers what they actually experienced doesn’t need a central thread and remembers things that are apparently unimportant). People who tell the truth are also not concerned with “proving” that their story is true, which is why they admit to memory gaps or make spontaneous improvements to their statement. Self-incrimination is also supposed to speak for the truthfulness, because someone who tells the false story wants to convince and not raise any doubts about their story.
These so-called quality features are sought out and evaluated in the statement. If the statement is of a sufficiently “high quality” one will come to the conclusion that the statement is experience-based and therefore “true”, otherwise this thesis will be rejected.
However, checking a statement using the feature-oriented content analysis is not easy. The quality criteria must certainly not be applied schematically. Because, of course, some features have a stronger result than others. The frequency of individual features also plays a role in the evaluation.
Nevertheless, in court practice it is often observed that quality criteria are processed in a catalogue-like manner without going into the important evaluation of the individual criteria and, at the end, in a final overall view. Courts also make the frequent mistake of hastily attributing a quality to individual psychological characteristics of statements that they do not actually have due to alternative explanations. If, for example, precise details of sexual intercourse that is claimed to be non-consensual are described, these have no quality factor, especially if such details would also be expected in the case of consensual intercourse by the accused.

Error due to omitting a so-called quality-competence comparison:
Before one can arrive at the conclusion of an experience-based statement, it must finally be checked whether the person making the statement was able to produce what was said without an experience basis, i.e. to invent it. It is obvious that if the witness were, for example, a statement psychologist himself, he would be able to sell a false statement as “true” with his knowledge.

In this respect, all individual performance characteristics of the person making the statement must be taken into account, in particular his so-called invention skills. The analysis of the memory performance and peculiarities of memory, but also knowledge and previous experience, the complexity of the event in question, the time period between the event in question and the questioning are of great importance here. The same applies to the results of a detailed sexual anamnesis (in the case of sexual offenses) and other personal characteristics.

Unfortunately, many courts fail to explore such description skills, which inevitably leads to errors in the assessment of evidence.

Errors due to schematic application of the psychological test:
The application of the psychological test must not be a kind of copy of another psychological report. In particular, any schematic application is prohibited – as shown above. The judge must have dealt with the facts he has established under all aspects that are essential to the decision.

An assessment of evidence that, for example, ignores alternative hypotheses without discussion or does not even recognize them is just as legally incorrect as if significant circumstances are not taken into account.
It is therefore legally incorrect if obvious aspects that could lead to a more favorable result for the defendant are not taken into account in a situation of one person’s word against another, for example if a witness claims “gaps in memory” in relation to an experience that is not easily forgotten. A judgment that justifies this deficiency in the witness statement by saying that a witness making a false accusation will often be careful to keep his story free of weaknesses, so that gaps in memory are a sign of particular credibility, can only apply to gaps in memory that can be explained by general memory laws, but not to the “forgetting” of essential details.
If the witness’s statement is inconsistent, this is an indication of a lack of credibility of the information as a whole, according to the highest court rulings, if it can no longer be explained by natural memory uncertainties. When describing events close to the body, such as a rape, it is to be expected that witnesses will remember distinctive body positions even over longer intervals. The same applies to how clothes were removed or which sexual acts were performed in detail.

If, for example, the public prosecutor or the court has granted a victim’s witness access to the files, the court is obliged to subject the statements of the prosecution witness to a special credibility test, because a witness can prepare his statement based on his knowledge of the files and have a significant impact on the consistency of the statement!

Summary

Frighteningly, a court can convict someone based on the mere statement of another, contrary to all human reason, without the need for further, above all objective, evidence. Although the highest court rulings require high formal hurdles for precisely this reason, these are often ignored in practice or are applied incorrectly.

This is precisely why it is vitally important to have a lawyer at your side who is very familiar with the difficult facets of conscious or unconscious false accusations, in particular the genesis of the statement, the validity of the statement and the quality of the statement. With the help of appropriate applications for evidence, sources of error can be uncovered, e.g. based on a thorough examination of the origin of the statement, contradictions, omissions or errors in the chronological description, inconsistencies, the lack of descriptions of the core events, suspicious structure and deficient descriptions of interactions and complications in the course of action, deficiencies in the level of detail and clarity, striking congruences or structural similarities, etc.

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”.

The spectrum of our law firm 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, weigh up a possible further assignment or also 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, 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!

Sexual harassment (§ 184i StGB)

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The prerequisite for criminal liability is physical contact “in a sexually specific manner”. Physical contact is considered to be such, which typically presupposes an already existing intimate relationship: touching the genital area or feeling the bottom, rubbing genitals on another’s body (frottage), groping the female breast.

Acts without physical contact such as sexual gestures or purely verbal “flirting” are therefore not punishable.

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 law 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 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. 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 also legally obliged to maintain absolute confidentiality 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, great scope for discretion, the lawyer’s competence and experience are essential – similar to that of a doctor. In criminal law, success therefore 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!

Serious harassment (§ 184i para. 2 StGB) and sexual assault (§ 177 para. 2 no. 3 StGB)

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Not all allegations of harassment concern borderline cases on the edge of impunity. When it comes to accusations of “clear” sexual contact against the will of another person, there is a great risk that the public prosecutor’s office will not want to see the case prosecuted “just” as simple sexual harassment, but as a “real” sexual offense – in particular as sexual assault (§ 177 StGB) with a minimum sentence of 6 months’ imprisonment!

According to Section 177 Paragraph 2 No. 3 of the German Criminal Code, sexual assault is punished if the perpetrator takes advantage of the victim’s “moment of surprise” to perform “sexual acts” on the other person. “Surprising” groping is therefore punished much more severely than “simple” sexual harassment, at least if the legal system considers the groping to be a “serious” sexual act (Section 184h of the German Criminal Code). This is usually assumed to be the case with touching in the intimate area or a firm grip on the female breast or buttocks, especially under clothing!

But even in the case of “insignificant” sexual touching, the court can assume a “particularly serious case” of sexual harassment and impose a prison sentence of three months to five years in accordance with Section 184i Paragraph 2 of the German Criminal Code. As a rule, serious sexual harassment is particularly likely to occur when the harassment is committed jointly by several perpetrators.

With these regulations, the legislator was clearly aiming for the severe punishment of very aggressive gropers, such as on “Cologne New Year’s Eve” at the turn of the year 2015/2016 – that’s the theory. In practice, the justice system often goes far beyond this goal – with the serious consequence that even behavior that is generally considered “normal” or “fun” by society carries the risk of very severe punishments.

Because the problem: how “firm” and “long” a (possible) harassment has been is usually determined solely on the basis of the statement of the (alleged) victim – not infrequently as part of suggestive and tendentious questioning by the police or the judiciary!

Therefore, even allegations of harassment that initially appear “harmless” should always be taken very seriously.

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 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 the respective chances of success of engaging a lawyer.

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, 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!

Exhibitionist acts (§ 183 StGB)

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A punishable exhibitionistic act occurs when the (male) perpetrator deliberately draws attention to his penis as a sexual organ. The decisive factors here are above all the external appearance and the concrete social context: in particular whether or not, from the point of view of an objective observer, another, non-punishable reason for the exposure is understandable.

Urinating, sunbathing naked, bathing naked or visiting a sauna are therefore not exhibitionism. According to the prevailing opinion in specialist literature and case law, “streakers” at public events who expose themselves in order to provoke are not committing an exhibitionistic act. In all of these cases, sexual motivation is not obvious.

However, extreme caution is required here! In practice, the suspect is regularly accused of using urination, sunbathing or similar as a pretext to commit an exhibitionistic act. It is therefore also crucial whether the suspect drew attention to himself or sought eye contact that was inappropriate to the situation.

According to the wording of the law, a mere voyeuristic act is not punishable: secretly observing (strangers) for one’s own sexual arousal. This applies even if the perpetrator secretly gratifies himself sexually and is sexually aroused by the risk of being discovered! It only depends on whether the suspect wants to remain unnoticed or not.

According to the law, the perpetrator must actually aim for another person to notice his exposure, because this perception by others is a necessary means of satisfying the exhibitionist. If, on the other hand, the perpetrator simply accepts that others can observe him (e.g. while he is masturbating), there is no exhibitionism in the criminal sense – even if it is precisely this “danger” that makes it so appealing to him.

The decisive factor is therefore whether the accused deliberately drew attention to himself or sought eye contact that was inappropriate for the situation – the latter, however, going beyond the almost unavoidable eye contact when discovered. The suspect’s behavior immediately after discovery is particularly suitable for drawing reliable conclusions about his inner motivation.

However, if a man unexpectedly approaches another person with his penis exposed, it can generally be assumed that he hopes that the perception of his genitals will have an effect and that he is therefore interested in the perception of the other person, which is sufficient to assume that the act is exhibitionistic.

However, if an exhibitionistic act is present, the actual harassment of another person is still mandatory for the act to be punishable. This is therefore a so-called result offence: for the act to be punishable, the other person must have perceived the exhibitionistic act and also have had their privacy noticeably violated.

For example, a man who exposes his penis on the subway but is not noticed by any passenger is not guilty of exhibitionism – even if this act is later discovered on a surveillance camera.

The harassment of another person must be specifically established: The mere fact that another person observed the act does not mean that he or she was also harassed. The victim must have experienced significant negative feelings such as shock, fear, anger, disgust, revulsion or a sense of shame. If the other person does not react in this way due to their attitude to sexual matters, but rather either reacts indifferently or with emotions such as amusement, pity or even interest, the so-called “harassment result” has not occurred and criminal liability is ruled out.

However, it is not necessary that the “selected victim” of the exhibitionist feels harassed. It is sufficient for a random observer to be harassed on site; not a person who only becomes aware of the incident at a later point in time.

If convicted, the defendant faces a prison sentence of up to one year or a fine. Even if there is an unfavorable prognosis for reoffending, the court can still suspend a prison sentence on probation, Section 183 Paragraph 3 of the Criminal Code.

When determining the sentence, it should be noted that the legislature has classified exhibitionistic acts as one of the least serious offenses with the particularly low penalty range. The infringements on privacy and the right to sexual self-determination are not too serious because the victim is typically only slightly impaired. Therefore, an experienced defense can in many cases still achieve a discontinuation of the proceedings against a fine or a small fine, often without an entry in the criminal record.

The embarrassment of a public court hearing can also be avoided in many cases by other options for ending the proceedings, such as a dismissal against a fine or a penalty order.

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 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!

Causing public nuisance (§ 183a StGB)

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Performing sexual acts in public can be punished as causing a public nuisance. Unlike exhibitionistic acts, all heterosexual, homosexual and autosexual acts by persons of any gender are covered if a sexual reference is evident from the external appearance.

However, the sexual act must be carried out publicly. Whether the act is “public” depends on various factors: in particular, the public accessibility of the place where the act takes place, but also the number of people present and their social composition (group with fixed members or random audience). The combination of all these circumstances in the specific individual case is decisive.

The public is affirmed in the case of sexual acts in public places, for example on the streets, in parks, in vehicles in public parking lots, in public buildings or at house entrances that are accessible at all times. It is then not important whether an indeterminate number of people actually perceive the act. The possibility of perception is sufficient. However, the public nature of the place is not the only decisive factor. If, for example, the perception of the sexual act was made significantly more difficult by obstacles, the public nature can be denied. Conversely, however, it can be affirmed if the location of the act is not publicly accessible but is clearly visible – if the perpetrators act in front of an open window front or on a balcony, for example, and can be seen by an indeterminate group of people.

The sexual act carried out in public must also be “significant” within the meaning of Section 184h of the Criminal Code. Socially usual acts such as kissing are therefore never punishable! Clear cases, however, are sexual activities that involve penetration of the male member into the body (sexual intercourse, oral and anal sex), as well as masturbation that is clearly recognizable as such. Other manipulations of exposed primary sexual organs can also be described as serious, but not simply touching the breasts or sexual organs over clothing. Striptease performances or other undressing are also not serious enough, but may be an administrative offence under Section 118 of the OWiG.

At least one person must have perceived the sexual act and therefore found it annoying, i.e. serious negative emotions such as disgust or an injury to the sense of shame. This reaction of the person concerned must be positively established: it must not be inferred solely from the fact that it was perceived unintentionally, especially since, given the frequency of sexual depictions in the media, an increase in indifferent reactions is to be expected.

Unlike exhibitionism (see above), the intention of being seen by another person is not necessary – however, the perpetrator(s) must at least have certain knowledge that their actions will cause annoyance if seen by another person. If the perpetrator(s) only “willingly accept” the risk of causing annoyance, there is no criminal liability! This is usually the case when a couple has sex secretly at night in a dark park without wanting to draw attention to themselves – even if they are aroused by the risk of being discovered.

In the event of a conviction, the threat is “only” imprisonment of up to one year or a fine. Therefore, in many cases, an experienced defense can still achieve a dismissal of the proceedings against a fine or a small fine, often without an entry in the criminal record.

The embarrassment of a public court hearing can also be avoided in many cases by other options for ending the proceedings such as discontinuance against a fine or a penalty order.

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 range of services 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, 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!