Court: saying 'no' not enough to stop sex

A German teenager who said she was raped by a 31-year-old man was told by the judge she had not defended herself enough for the law to convict him – simply saying no was not enough.

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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