Navigating the Confusing Terminology of Sexual Criminal Law in the Till Lindemann Case

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For a few days the media have been reporting allegations of “sexual abuse“, of the “sexual assault“, of the “abuse of power” and the “rape” against Rammstein singer Till Lindemann and ask the question, when a criminal investigation will take place. Lindemann denies the underlying allegations. Through his press attorneys, he says they are “without exception untrue.”

Not all allegations are of a criminal nature and, to the extent that they are, much gets confused. Classifying remarks on the sometimes completely incorrectly used terminology of sexual criminal law and their practical application are therefore worthwhile.

“Sexual Abuse”

If an adult concert-goer, under the impression of the fame and “power” of a celebrity, engages in sexual acts with him, this has nothing to do with sexual abuse under criminal law – psychology and sociology can use different definitions and standards with good reason. The sexual abuse of power structures is punishable – contrary to the misleading, almost wrong headings of the norm, it is not the victim who is abused, but the relationship to him – only in exceptional cases, for example, sometimes under further conditions, towards children (§§ 176 ff. StGB), Young people (§ 182 StGB), wards (§ 174 StGB), prisoners or sick (§ 174a StGB) and patients (§ 174c StGB).

“Sexual Assault”, “Sexual Assault”, “Rape”

If you enter the area outside of these exceptional cases, the legal situation becomes more complicated and the terms hardly clearer:

“Against the recognizable will” (§ 177 Abs. 1 StGB)

According to Section 177, Paragraph 1 of the Criminal Code, sexual acts with persons who are not protected by such special facts are punishable as sexual assault if they take place against their “identifiable will”. It is therefore necessary that the person has formed and clearly expressed an opposing will (objective fact) and that the perpetrator has at least accepted the act against this opposing will (subjective fact). In criminal procedural practice, disputes regularly revolve around these two points: Was the opposing will expressed in a recognizable, i.e. understandable way? And did the accused understand this statement as such?

It is obvious that the evidence on such questions is exceptionally difficult – often no one else was present – and is therefore highly likely to lead to misjudgments on the part of the accused (conviction) or to frustrated disappointment on the part of the complainants (acquittal). the hand.

Inability to form or express one’s will (Section 177 Paragraph 2 No. 1 StGB)

Anyone who has been made unconscious, for example with gamma-hydroxybutyric acid (“KO drops”), whether by the perpetrator or a third party, cannot form an opposing will, but at least cannot express it. If someone takes advantage of this situation for sexual acts by consciously considering that this condition at least facilitates the acts, he is liable to prosecution according to § 177 Section 2 No. 1 StGB. According to the case law of the Federal Court of Justice, exploitation already exists if the perpetrator, by seizing the opportunity, consciously avoids having to deal with an “always possible” conflicting will of the victim. Because his fictitious (hypothetical) will is irrelevant, this also applies if the perpetrator is certain that the victim, if she were able to form and express her will, would agree to the sexual acts. Exceptions can only be considered if the person concerned has already expressed their consent to this state before they become unconscious (e.g.: “We’re getting stoned and you can do anything with me”).

In addition, the administration of “KO drops” for the unresisting execution of sexual acts according to the case law of the Federal Court of Justice (2 StR 79/17) also fulfills the offense of dangerous bodily harm according to § 224 paragraph 1 No. 1 or 2 and 3 StGB Qualifying facts of § 177 Section 5 No. 1 StGB (use of force) and § 177 Section 8 No. 1 StGB (use of a dangerous tool). The minimum sentence for such acts is five years.

Restriction of the formation or expression of will (§ 177 Para. 2 No. 2 StGB)

If the ability to form and express one’s will is not abolished, but is significantly restricted – such as in the case of a drunk babbler – it is punishable under Section 177 Paragraph 2 No. 2 StGB whoever exploits this condition without securing consent. This consent must be given in advance, must relate to each individual action and can also be given through conclusive (implicit) behavior. This concession of the “yes means yes” debate to autonomy requires an objectively unequivocal consent, of which there must be no reasonable doubt and which can be given at any time during the sexual act – again impliedly, but of course not with effect on what has already happened – can be withdrawn.

Anyone (m/f/d), for example on the occasion of their next festival visit (optionally: “Rock am Ring”, “Nature One”, “Wacken” or “Splash!”), “picks up” a (half) drunk acquaintance on the basis of the above, first have to assess for themselves whether the ability of this person to form and express their will is (already) excluded or (still only) significantly restricted and whether in the latter case a consensus was at least implicitly (but undoubtedly!) expressed and not at least implicitly withdrawn became. He or she can only hope that the public prosecutor’s office and the court will consider his or her assessment of the situation to be plausible if the worst comes to the worst. Misjudgments can be punished with imprisonment from six months to five years, as long as the sexual act was in the area of ​​so-called petting.

Rape (§ 177 Section 6 Sentence 2 No. 1 StGB)

If, on the other hand, there is vaginal, oral or anal intercourse, the perpetrator usually faces a prison sentence of two to 15 years in accordance with Section 177 Paragraph 6 Sentence 2 No. 1 StGB. Such “rapes” do not have to have anything to do with violence, while the sexual assault regulated in Section 177, Paragraph 5, No. 1 of the Criminal Code using violence without penetrating the body usually does not constitute rape:

Sexual intercourse against the recognizable will of a person, but without the use of force (e.g.: letting vaginal intercourse go too far despite previous warnings that you don’t feel like it so as not to have to argue) is a fundamental offense according to the legal definition of Section 177 Paragraph 6 Sentence 2 No. 1 StGB constitutes rape. Sexual acts that do not involve penetration of the body, but occur with the use of force (“petting” while holding both wrists), do not constitute rape. Against the background of the wording and system, this does not seem entirely consistent .

Merely exploiting the position of power is not punishable

For the time being, it should be noted: The mere fact that adult women in a situation they perceive as a pressure situation are brought closer to a “star” – institutionalized and successively systematic (room 1, room 2, room 3…) – was not previously open They then do not reject communicated sexual advances for a wide variety of reasons, although they could do so without restriction, is not covered by criminal law by any of the offenses described above.

Such potentially problematic mechanisms, which are also reported on from other areas of pop, rock and rap, are to be examined by the various social science disciplines, but are currently not relevant under criminal law.

However, it could be different with the allegations – denied by Lindemann – which question the consensual nature of any sexual acts. In its cover story of June 10, 2023, SPIEGEL also reported in detail on the allegations against Lindemann and, under the names changed by the editors, allows individual women to have their say with specific reports. More details on how their descriptions are to be assessed in detail under criminal law and what inconsistencies and evidence problems exist will be given in another article that will be published on Wednesday.

dr Yves Georg is a criminal defense attorney and partner at the law firm Schwenn Kruse Georg Rechtsanwälte in Hamburg.