-Analysis-

BERLIN — "No means no," for some it might sound like a battle cry from the 1980s: grumpy, outdated and perhaps a little too naive. But reality tells us that it is very much a reality that still needs to be confronted, once and for all. Sex simply must be something that all parties involved want to happen. And if not, what is happening is nothing short of rape.

Germany's parliament, the Bundestag, has voted to inscribe the "no-means-no" principle in the nation's criminal code. And that is neither a simple nor trivial matter. Once such tightening of legislation is activated (the upper house Bundesrat must still approve it) not only those who force people into sex under threat of a knife, gun or other forms of violence will be considered rapists.

Even if the victim does not resist, but disagrees, perhaps starting to cry, or making it clear in any other way that she or he does not agree with what's happening, it would count as rape. Being surprised in one's sleep or choosing not to resist in order to not wake the children might lead to the filing of criminal charges.

A person's body, man or woman, belongs to him or her; and if someone wants that body, he or she needs to get the person's approval. If it's not given, or given first and then withdrawn, this might be annoying, but sexual self-determination comes first.

And that's just fine. The Minister of Justice on the other hand might still have some doubts. He fears a wave of false reports triggered by such a "no-means-no" principle. But those who know what's really going on in court, also know: The victims' suffering should be of much bigger concern. Shame and violation are added to the bitter déjà-vu feeling of total powerlessness. Proving rape is tough enough, most of the time there is neither evidence nor witnesses in the face of a standard of proof with a presumption of innocence.

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"No means No" graffiti — Photo: Max Pfandl

There is also the section of the proposed legislation about groping. Women have too long been mocked for not accepting a pinch of their butt as a compliment. The night of New Year's Eve in Cologne has changed things. In the future sexual harassment shall be punished with a fine or a prison sentence of up to two years.

Group liability

Those who now fear the state might forbid touching when dancing, kissing and flirting can relax. "Hitting on" someone if all parties approve is by no means comprised in this legislation.

The reform's third element refers to criminal acts of sexual attacks perpetrated by "groups." Legislators want to include prosecution of anyone who "participates in the grouping together of people who sexually attack someone." Here is a clear reference to the attacks in Cologne, where women were surrounded, touched and robbed. According to the new law, any member of the group could now be punished for sexual harassment, even if he had "only" robbed someone.

There are constitutional doubts about this paragraph. "Someone who has not committed the crime, cannot and must not be punished for sexual offense," says legal expert Renate Künast. "It contradicts the principle of liability upon which our whole criminal law system is built."

The law, even in such highly charged cases, is the law.