According to the Criminal Code, anyone is guilty of rape who "engages in sexual acts on that person against the recognizable will of another person". Sounds complicated? Unfortunately, it is in reality too. We talked to a lawyer about trials, convictions and evidence – and why we often feel that rape is punished too mildly.
Anyone who sexually harasses or abuses a person not only robs the victim of their dignity, but in the worst case also their self-confidence and trust in others. Apart from psychological consequences, such an act can also cause severe physical stress. But why are offenders who are guilty of rape, then – in the eyes of outsiders – usually relatively weakly punished? We spoke to Sigrun von Hasseln-Grindel about this observation. Among other things, she is a lawyer and journalist and has worked for many years as the presiding judge at the regional court. She works particularly often on cases of sexual assault or rape and advocates a fair course of proceedings in which special consideration is given to the victim.
word agains word
"Trials in the area of sexual crimes are among the most difficult processes in terms of establishing the truth," said von Hasseln-Grindel. Because it is essential in such an act that there are often only two people who know exactly what has happened: the accused and the witness. That usually means: statement against statement. That is why von Hasseln-Grindel assigns the evidence a special task. A perpetrator's guilt can only be determined with sufficient evidence – if this is missing because the victim showered and washed his clothes after the crime, it is difficult for lawyers to understand and prove the crime.
Later on, these are the decisive features when it comes to evaluating evidence.
That is why it is best for the victim to go to the police as soon as possible, according to von Hasseln-Grindel. She wants to encourage those affected to express themselves publicly about the crime and not be ashamed of it – because there is absolutely no reason for that! You can also go to the police with friends or family in order to have support. A visit to the doctor is also possible immediately after the crime, because a medical examination can identify and secure any traces on the body. These DNA samples can also be stored without having to be notified immediately. The victim then has time to think about what they want – without losing any evidence.
An exhausting process – for everyone involved
Because a victim does not always decide to report the perpetrator. A trial is often exhausting and open-ended – in the worst case, the witness loses the trial and the accused is acquitted. Then the person concerned is often denied the truthfulness of the statement, one quickly ends up in a drawer and is not taken seriously. And that's only because there is a lack of decisive evidence. Sigrun von Hasseln-Grindel would like to avoid that. For her, too, as a former judge and practicing lawyer, such processes are difficult: "That's the horror, if you know for sure: It was the guy who raped and abused her so terribly. (…) And now we have to to acquit. " This is another reason why traces of DNA on the victim's body are important, as are the clothing worn and any injuries.
At least two years – without parole
If a rape has occurred, the sentence must be at least two years. For the offender, this means that a suspended sentence is usually not possible – this is what the German legal framework provides. Exceptions apply, for example, in "less severe cases or in the case of reduced culpability", according to von Hasseln-Grindel. Why the sentence seems too mild to us is due to various factors, as the lawyer explains to us:
The press speaks of rape, but in reality (forced) petting has taken place.
For example, the press can portray the case in a much worse way than what is going on in court. This often happens unconsciously, since laypeople tend to view the term "rape" less differently than lawyers do. If a sentence of two to 15 years is provided for actual rape, it is six months to five years for "forced petting". And other penalties also apply to sexual assault: If the man removes the condom during consensual sexual intercourse, although the other person did not agree, this is not rape according to the law – "even if the perpetrator later ( …) ejaculates into the body of the injured party ", says von Hasseln-Grindel.
In German criminal law, only what has been said in the courtroom applies.
And even in the absence of evidence, the defendant cannot be sentenced as strongly as it might be appropriate – or even has to be acquitted. In addition, in German criminal law only what was clearly stated in court, regardless of what is in the files or what a witness said in an interview beforehand, explains von Hasseln-Grindel. This means that in the worst case, the accused cannot be convicted if the witness cannot withstand the pressure in court and cannot make a testimony – even though he may have made one before the trial. Then it is often "dealt":
This is a victim protection measure.
If a perpetrator could possibly not be convicted as guilty after regular court proceedings, all those involved often sit down in an adjoining room and negotiate a so-called "deal". This means that the accused is offered the prospect of reduced sentences if he confesses something. In this way, the victim can be spared a public testimony and an exhausting process that might have led to an acquittal for the perpetrator. Von Hasseln-Grindel is convinced that the victim often doesn't care how high the accused is sentenced – the main thing is that there is a punishment and that the victim is not labeled as an unbeliever. However, outsiders "only" see that the sentence is too low.
It takes strength to face
Anyone who has been a victim of rape or sexual abuse should contact the police or a doctor immediately – this is the only way to lead to a potentially successful trial. In order to make the process more bearable for the victim of such an act, the accused and witnesses are sometimes interviewed in separate rooms. That was often the case with her trials, if possible, the lawyer tells us. So the victim does not have to be in the same room with the perpetrator. The accused is often sent to an adjoining room and can watch the process from there on video. Sigrun von Hasseln-Grindel would like to encourage every victim to stand up and file a complaint: "It cannot be that offenders are not held accountable."