No means no - no exceptions

There is a widespread stereotype that a rapist is a culprit lurking in the park at night, awaiting a random victim that he will then attack. Statistically speaking, however, most rape victims have some sort of relationship with their rapist and assaults usually occur in the victim's normal environment. The perpetrators are colleagues, acquaintances, relatives or even their own partners - and women seldom report the assaults.

Rape as a legal offense is delineated in Paragraph 177 of the German Criminal Code (StGB). The law stipulates there must either be violence committed against the victim, risk of life and limb, or the victim must be completely defenseless to the attack of the perpetrator in order for the assault to be counted as rape in the eyes of the law.

Saying "No I don't want to!" is not sufficient under current legislation.

Counseling and victim support facilities find this situation completely unacceptable. Etta Hallenga guides and advises victims of sexual violence at the Women's Counseling Center in Düsseldorf. "Very few women know this rule. If they say no, ask, cry or plead that he should stop, they are later shocked to discover that this is not recognized as rape," says Hallenga.

Hallenga has observed that these cases often never see trial; "The woman can file charges, but then the case is usually not pursued by the prosecutor." According to a study by the Criminological Research Institute of Lower Saxony, in 2012 only 8.4 percent of charges filed resulted in a conviction.

Closing the loopholes

The federal and state justice ministers now want to reform Paragraph 177. What the actual details of the new law will be are yet unclear. It will probably go in the direction of a so-called "No Means No" rule.

Germany is also under pressure internationally, ever since the Istanbul Convention - an agreement made by the Council of Europe to combat violence against women - came into force in August 2014. The convention stipulates that, generally, any non-consensual sexual act is punishable by law.

After a meeting last Thursday with his German state colleagues, Federal Justice Minister Heiko Maas said it was clear "that there are gaps in the law's protection and we want to close these gaps." As to the question of how much resistance a woman has to muster in order for an assault to be considered rape, the current law does not always provide a clear answer, Maas admitted to the Frankfurt Rundschau newspaper.

What about unconventional sex acts?

Critics fear that stiffer regulation could lead to an increase in false accusations. A sexual encounter between two people is complex and not always consistent, and the boundary between consensual acts and coercion is not always clear. Sometimes a "No" actually implies a "Yes" and a "Yes" does not always signal a real want.

Many critics see difficulty where sexual behavior deviates from social conventions - in sadomasochistic practices, for example. Violent actions, which may usually constitute a criminal offense are expressly agreed to beforehand and are meant to provide a special pleasure.

Dagmar Freudenberg of the German Women Lawyers Association sees no discrepancy: "We don't intervene when it comes to sadomasochistic acts, since there are ground rules in these situations; for example, a safe word is agreed upon. When it is spoken, then the act stops. This can also be seen as agreement or withdrawal of consent, like [saying yes or no] in other contexts."

Time for a paradigm shift

Proving an allegation of rape in court will not become easier by a corresponding change to the criminal code, Freundenberg already knows that: "It doesn't change the fact that it's one person's word against the other, that's very clear. But one must differentiate between the legal safeguard that protects you and the question of whether or not you can prove wrongdoing later."

Etta Hallenga also sees it this way: "It's not important to me if more arrests come about or more convictions. I am concerned about the attitude we have in relation to sexual self-determination. Paragraph 177 is a slap in the face when it comes to human rights." In the long term both hope that a stricter criminal law will also cause a change in mentality - the right for people to decide over their own bodies knows no exceptions. At the same time, all parties must make what they want - and what they don't want - unmistakably clear.

To help women who have experienced sexual assault and give them more room to deal with attacks, a whole set of measures is necessary - which is another thing Hallenga and Freudenberg agree on. So far, only a few federal states provide the opportunity to save evidence like DNA after a rape without immediately involving the authorities. This is important because as soon as the authorities are informed they must begin an official investigation - taking the case out of the woman's hands.

But victims often need time to think about filing charges and the associated consequences, says Freudenberg. Hallenga added that police and the courts rarely make use of the possibility of video questioning that could make giving testimony easier for women. On top of that, it can often take a long time from when charges are filed to an actual court case - sometimes as much as two years.

A new law recently came into effect in the US state of California that prohibits sex at local universities without a clear "Yes" from both partners. This move is seen by many advocates as the logical evolution of the previous "No means no" rule.