“No Means No” or “What Exactly is a Recognizably Opposing Will?”
According to the new Section 177 I of the German Criminal Code (StGB), sexual acts are punishable if they are performed against a recognizably opposing will. However, the victim’s opposing will should not, per se, lead to criminal liability (even though some advocates of the “No Means No” movement have demanded this), but only if it was “recognizable.” The explanatory memorandum to the law states that the recognizability of an opposing will should be assessed from the perspective of an objective third party.
Thus, an opposing will is recognizable if the refusal is either explicitly stated or unambiguously inferred from the situation, for example, if the victim resists, struggles, or cries.
However, the law does not clarify whether such communication is a necessary condition or whether recognizability can exist without the victim contributing to the communication. Legal practitioners might argue that, under certain circumstances, an opposing will is objectively recognizable even if the affected person remains completely passive.
The legislator’s concept of an “objective observer” is itself highly interpretative in legal practice. Objectivity is limited since individual attitudes toward sexuality and aesthetics may lead to different evaluations. Furthermore, the question of what constitutes an objectively recognizable opposing will is difficult to determine and prove (not only from the perspective of protecting defendants but also due to the subjective nature of conclusions like “under these circumstances, the woman or man could not have consented”).
Under previous law, the absence of consent could be inferred from objective circumstances (use of force, threats, etc.), but this is no longer the case. The burden of proof will now focus more than ever on the victim’s behavior, as lack of consent must be derived from it. This shift may provoke victim-blaming defense strategies. If the accused does not confess, intent must be inferred from external circumstances, which explains why previous case law regarded resistance as a key indicator of the victim’s opposing will and the accused’s knowledge thereof.
What may be overlooked is that it is not the objective third party but the perpetrator who must recognize that the victim does not consent to the sexual act. The wording of the law suggests that the perpetrator merely needs to recognize circumstances from which an objective third party would draw the correct conclusions. Alternatively, the legal practitioner who considers the opposing will objectively recognizable may simply not believe the defendant who claims not to have recognized it.
Although the sexual offense law (including the new provisions) does not require a special duty of care to ensure the victim’s consent (“Only Yes Means Yes”), such considerations effectively introduce negligent criminal liability—something the sexual offense law deliberately avoids. Only intentional acts—where the perpetrator knows or foresees with certainty and accepts that the victim’s will is recognizably opposed—should lead to punishment. Not, however, if the perpetrator simply did not recognize this, for example, because the victim expressed themselves ambiguously.
Ambiguous or contradictory behavior by the victim is one of the main problems. How should the law distinguish when the recognizably opposing will was not explicitly verbalized but must be inferred from behavior? The explanatory memorandum provides two examples of implicit rejection: crying and resisting sexual acts. But what if the victim actively participates and their overall behavior does not signal clear and consistent rejection? If the observer perceives an ambiguous picture, particularly from the accused’s subjective perspective, this raises issues—especially in cases of changing opinions, which the accused must have recognized.
Conversely, doubt may arise as to whether a “No” genuinely signified strict rejection if the person later actively participated and did not merely endure the acts passively. For example, in relationships, a “No” does not necessarily mean a final rejection (think of the contemporary “Shades of Grey” dynamic, where reluctance is overcome through sexual acts). Previously, a “No” meant “No” only when it was serious—how can this be determined under the vague new law?
Moreover, how can courts assume the necessary intent for conviction under the new law without blindly presuming it due to a lack of concrete evidence? Intent is established if the perpetrator at least accepts that the sexual act occurs against the objectively recognizable opposing will of the victim. If the perpetrator is unaware of the victim’s resistance, they act without intent. The reason for their ignorance does not matter (§ 16 I StGB), nor does whether it was avoidable or based on moral convictions.
For example, if an accused claims they misunderstood the communication, they cannot be convicted. If someone asserts that they believed they acted with the other person’s consent, it will be difficult to prove otherwise—especially in cases where it is one person’s word against another’s. Moreover, if someone mistakenly believes their sexual acts will elicit consent, they are not committing an offense.
Clearly, this new sexual offense law presents significant challenges for courts. In cases where it is one person’s word against another’s, credibility assessments cannot be based solely on whose story is more plausible. However, given the subjectivity involved in determining whether the victim’s behavior implied an opposing will—combined with societal pressure for convictions—there is a risk that more innocent people will be punished. False accusations may now simply need to claim that consent was never given and that this should have been obvious to the “perpetrator”—for example, because they looked sad during sex.
“Yes Means Yes” and “What Exactly is a Significant Impairment of Decision-Making Ability?”
The key change in the new sexual offense law is the introduction of § 177 II No. 2 StGB. Anyone who wants to have sex with an intoxicated or mentally impaired person must ensure explicit consent before engaging in sexual activity. Here, “Only an Explicit Yes Means Yes” applies.
This differentiation regarding significant impairment of decision-making ability is entirely new compared to previous law. The explanatory memorandum fails to clarify the required severity of this impairment or how it should be interpreted.
The law does not specify how the perpetrator must obtain consent. The court may rely on expert assessments, but what exactly should an intoxicated perpetrator do? There is no scientific distinction between varying degrees of decision-making ability, and there are no guidelines on how to recognize them.
According to the law, even actual consent from the protected person is not enough unless the perpetrator explicitly ensures consent before each sexual act. It is not sufficient for the protected person to later confirm that they wanted the act. The legally required explicit consent before each sexual act is impractical and unrealistic, yet it is now the law.
Moreover, the requirement for explicit consent contradicts the notion that individuals with mental impairments lack full capacity to make sexual decisions. The same individuals whose capacity to consent is doubted are expected to provide valid consent for sexual activity.
Applying this law in practice is fraught with difficulties, particularly when both parties are impaired. For example, if two mentally impaired individuals engage in sexual activity, obtaining prior explicit consent becomes nearly impossible. In social settings, such as nightclubs, this law effectively prohibits intoxicated individuals from engaging in consensual sex.
The law is clearly inconsistent, and its implementation in real-world situations will be problematic. The uncertainty surrounding “significant impairment” and how to verify consent before each act creates legal gray areas, making it difficult for both legal practitioners and individuals engaging in sexual relationships to navigate the law effectively.
