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Court: saying 'no' not enough to stop sex

Published: 14 Sep 2012 07:02 GMT+02:00

The case caused outrage this week when the judge at the Essen district court reportedly told the girl, “If one does not want something, one must make it clearer.”

A statement issued by the court on Thursday said this was not the case and that the judge had simply explained the legal situation.

German law demands that one of three factors be proven for a rape conviction – the accused must either use force, threaten to use violence or exploit the fact that the victim is in a defenceless situation.

None of these three things could be proven in this case and the judge did not convict the man accused. Even the prosecutor had recognised the case could not be won and agreed to the acquittal.

The girl was just 15 when she said the man forced her to have sex with him. She had been with him and two adult women during a long, boozy night in Marl, near Recklinghausen, North-Rhine Westphalia.

A court statement said the man, identified as Roy Z., had been very drunk and had smoked a lot of cannabis during the night in question, in July 2009.

At the end of the night, the four lay down to sleep in the living room of a flat in Marl. Roy was on the sofa and the girl with the two other women on a mattress on the floor.

But before they went to sleep, Roy told the two women to leave the flat and go down to the cellar.

They did so without asking why or protesting – both knew that he reacted very aggressively when not obeyed, the court said. He had already beaten up one of the women so badly that night that he is currently serving a three-and-a-half year sentence for grievous bodily harm, Der Spiegel reported.

The physically strong man and the girl had sex, despite her having told him, “No, I don’t want to,” the court heard.

“This is not enough to meet one of the three conditions laid out in paragraph 117 of the criminal law code,” Wolfgang Schmidt, spokesman for the court and a judge himself, told The Local.

“The door to the flat was unlocked, it was in a building with other flats. She could have left with the other women or called out for help, for example. There was no evidence presented to the court of violence being used, or threatened, and her position could not be described as defenceless.

“He is said to have told her he wanted to have sex with her and pulled up her skirt, and pulled down her underwear. She said she didn’t want to. And although I do not want to put any guilt onto the girl, she could have then shouted or run away.

“When her lawyer describes what happened as a human catastrophe; that is something I can understand.

“But what we understand as people may be different from what the law can decide.”

The girl’s lawyer Dirk Brockpähler told The Local that as a person he found the verdict “a catastrophe,” but that as a lawyer he saw the logic in it. He said a ruling from a higher court on a different case led him to surmise that if the girl had bitten or scratched the man or screamed, it would have been a different matter.

“That is the law in Germany, people have to understand this – the law is limited. The accused has the right not to say anything, and in this case he made full use of that right, which we have to respect.

“If there is no way of determining a person’s intent, and there is not a completely clear catalogue of evidence, the court has to find in favour of the accused. In this case the facts were borderline.

“What is good is that this has sparked a discussion and perhaps the law could be changed as a result.”

He said the girl had decided not to appeal the verdict after a long conversation. “I asked her, after explaining the legal situation, whether a fly on the wall would have seen anything that would have legally made it rape and she said no.

“There has been an enormous reaction to this. One has to say, I think the court would have liked to have reached a different verdict.”

Hannah Cleaver

The Local (news@thelocal.de)

Your comments about this article

09:15 September 14, 2012 by Anglo1
Surely the law needs to be changed.

This girl was 15 and therefore a minor, the man was known to her as an aggressive person towards women. She must have been very frightened of him, which is why she probably did not fight him off, she would have thought he would harm her or worse. Surely this is wrong on so many levels. For her to go through all the court case and interrogations only to be let down by a very archaeic system, something needs to change. The judge could have used the fact that she knew what he was capable of and therefore felt very threatened by him, which made her comply without fighting back.
09:39 September 14, 2012 by wood artist
While I understand the legal arguments here, what this demonstrates that the law needs to be changed to reflect reality. She was raped. However, he didn't "rape" her because she didn't fight him off enough. Of course, if he told her to keep quiet, and she feared for her life, then she likely wouldn't scream. He didn't have to overtly threaten her, nor brandish a weapon.

At some point NO does mean NO, and that point should be the basis for the law. The fact that she didn't do "anything on list A" so it wasn't "rape" is just pure BS. If I didn't know I was looking at The Local, I'd swear this was the ruling of some redneck court in the US, where the GOP wants to put women back in their place...as property with no human rights.

wa
09:48 September 14, 2012 by ChrisRea
It is sadly a case of her word against his. Well, against his silence.
10:11 September 14, 2012 by charlenej
She should have called one of the other women for help? One of the ones that he had already beaten to a pulp that day?
11:44 September 14, 2012 by Onlythetruth
"No" is not enough? How much clearer could it be? Oh I get it, good girls are supposed to protest at first even if they really mean yes.
12:39 September 14, 2012 by steve_glienicke
so let me get this right, the rape case was thrown out when this young girl did not put up enough of a fight (my opinion is that No means No), making the matter consensual between them both, and the guy by his admission had intercorse with a minor which as far as im aware is a legal offence in germany and he is not arrested and charged with sex with a minor.....
12:58 September 14, 2012 by zeddriver
@ W A

You have it wrong my friend. It's the liberals in America that want to give sex offenders their rights back. It's the liberals that try to say that they (the sex offender) were just confused because of a traumatic child hood event. So therefore are not really responsible for their deviant sexual actions.

It's the conservatives in America that think the rapist and sex offenders should go to jail and throw away the keys.
14:16 September 14, 2012 by ChrisRea
@ steve_glienicke

Having consensual sex with a 15-year old is punishable only if the minor was convinced through gifts or promises. Obviously, the girl stated something different, so if it was consensual sex, than the man did not break the law.

The circumstances seem to indicate that it was not consensual sex, but rape. The problem faced by the court is that there is unfortunately no direct evidence. It is only her word. ¦quot;I asked her, after explaining the legal situation, whether a fly on the wall would have seen anything that would have legally made it rape and she said no." So the court had no ground to convict the man, even if they would have liked to see the man behind the bars.
16:22 September 14, 2012 by ValP
"... She had been with him and two adult women during a long, boozy night in Marl..." what the heck was a 15-year-old girl doing there??????
19:41 September 14, 2012 by tadchem
If he had already beaten one of the women so badly that he earned a 3-1/2 year jail term, the would have been intimidating to ANY witness who could not have taken him in a fight, such as a teen-age girl.

@ValP: The girl was drunk, and he made sure of the fact before he took her. The only man in the world I have ever truly hated got a friend of mine high so he could rape her. He is dead now.
21:20 September 14, 2012 by charlenej
For better or worse, I don't think many people in the U.S. fight for the rights of pedos, zeddriver. Not even liberals. Every time some perv does something awful to a child, pretty much everyone is in agreement that that person needs to be at best put somewhere far away for a very long time. Other offenses, liberals and cons may disagree, but child sex offenders? As far as I've seen, the most liberal people want to do bad things to people who hurt children.
21:49 September 14, 2012 by sonriete
It is reasonable to ask why a 15 year old girl is out drinking and smoking pot all night with three adults. Her guardians should explain to the court why they permitted this to happen. Many questions here, how did she know this man? Had she been drinking and getting high with him before? I think if she said no before any sex act started then of course it is rape. Another commenter suggested he got her drunk to have his way with her, is this actually known? For that matter, did any of the three women get him drunk deliberately and contribute to this mess? The Devil is in the details.
22:07 September 14, 2012 by zeddriver
@charlenej

I give you the judge in NY that gave a child rapist who confessed to 48 counts of raping two boys over the course of several years. Upon pleading guilty the rapist turned to his victim in court in front of the judge and professed his love for the 17 year old victim. The liberal former defense attorney gave the rapist two years.
17:57 September 15, 2012 by XFYRCHIEF
No matter what, I thinks its pretty sad when someone has to pay 60,000 Euros for calling another person an a*****e, but someone sexually assaults a 15 year old and get off with nothing.
19:54 September 15, 2012 by bwjijsdtd
If you know rape is going to happen, clayton Williams said it best ... "Just lay back and enjoyt it ...
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