In 2015, the state of California passed a law known as “yes means yes” – making affirmative, verbal consent to sex the legal standard on college campuses in the Golden State.
It was the latest victory of a US women's movement which in recent years has spoken out ever more loudly about the continuing prevalence of sexual violence against women – and the failure of the authorities and the law to address it.
In Germany, by contrast, women have not had the same success in wringing legislative change out of political leaders.
It was only in 1997 that the country passed a law to criminalize marital rape, in what at the time was a bitterly-fought cultural battle that united otherwise opposing female politicians across party lines.
Now further changes are being pushed by the government to bring Germany's laws up to date. On Thursday, the Bundestag (German parliament) held it's first session to debate new tougher proposals.
But campaigners say that the draft law currently under debate is far wide of the mark.
“It’s frustrating and shaming that in Germany we are still fighting for ‘no means no’,” activist Kristina Lunz told The Local.
'Nein' is not enough
As it currently stands, Section 177 of the criminal code defines rape as forcing someone to accept or carry out a sexual act using violence, the threat of imminent danger to life and limb, or the exploitation of a situation where the victim is at the perpetrator's mercy.
Given the importance placed on violence and the lack of any language about consent in the law, campaigners complain that simply saying “no” to a sex act is not enough to class it as a rape in the eyes of judges.
“The idea that a woman is always sexually available unless she fights is a total tragedy, and beyond comprehension,” said Lunz.
A 2014 study by women's rights organization BFF of 107 cases of serious sexual assault found that the current law is preventing convictions against large numbers of perpetrators.
“In all the cases analyzed, sexual assaults happened against the unambiguous will of the victim that had been verbally communicated to the perpetrator,” the authors wrote, “but charges were not filed by prosecutors or a court did not convict.”
The BFF study identified three main problems in German law that needed addressing:
- Saying “no” is not sufficient to make a sex act a crime
- Too much emphasis is placed on whether and how much the victim resisted the attacker
- The law doesn't do justice to the real situations in which people are raped
“These findings are linked to one another, but also with the public's idea of of what rape is and how victims ought to behave,” the BFF argued.
'Of course it should be yes means yes'
Lunz, currently a graduate student at Oxford University in the UK, has herself helped found a campaign under the motto “no means no” (#NeinheißtNein) in co-operation with the German branch of UN Women.
It has enlisted celebrities as spokespeople, stoked debate on social media and secured large amounts of coverage in German media about the government’s plans to change the law on rape.
While Germany may be far behind California and much of the rest of the English-speaking world on rape law, Lunz feels that campaigners have to proceed one step at a time.
“Of course it should be ‘yes means yes’,” she said.
But given how hard a battle it may be to get ‘no means no’ onto the books – and the inadequacy of the current law – Lunz and others don’t want to let the perfect be the enemy of the good.
Draft law aims at wrong target
The problems in German rape law directly contradict Germany's obligations under the Istanbul Convention, a European agreement dating back to 2011 which states that countries must include the concept of consent in definitions of rape.
The draft law proposed by the government has been given added urgency after the wave of sexual violence in Cologne and other German cities on New Year's Eve, when hundreds of women reported rape, groping or other assaults in public places.
Many people have been astonished to learn in the wake of the attacks that groping a woman’s breasts or genitals through her clothes is not a sexual offence in Germany unless the woman resists.
But the new-found enthusiasm for women’s sexual self-determination was so brash that feminists angrily complained in a campaign called ‘ausnahmslos’ (without exception) that they were being exploited to generate hate of foreigners.
— ausnahmslos (@ausnahmslosorg) 29. April 2016
Critics have alleged the new law is an attempt to deal with that public outcry rather than to seriously reform the law on rape and sexual violence.
No mention of consent
Justice Minister Heiko Maas said in the Bundestag on Thursday that “it is long past time to protect women in Germany better against sexual violence”.
The new law would criminalize exploiting victims' inability to resist, committing surprise sexual assaults or exploiting the victim's fear.
But the draft makes no mention of consent.
“No paradigm shift to a comprehensive principle of consent is accomplished with the draft law,” the Federation of German Women Lawyers (DJB) wrote in an opinion in February.
They complain that “it still assumes that a victim 'normally' defends themselves and that a perpetrator can 'normally' assume that if there is no resistance then the victim agrees to sexual acts”.
Alliance building for ‘no means no’
The good news for campaigners is that men and women in the Bundestag and beyond are preparing to fight for a much more comprehensive new law.
“The pressure from civil society and across party lines in the Bundestag is huge,” Lunz said. “It’s empowering and inspiring how many people are pulling together on this.”
Women MPs including Eva Högl, deputy leader of the Social Democratic Party (SPD) group, the Left Party’s legal expert Halina Wawzyniak and the Green Party’s Katja Keul all leapt into Thursday’s debate to push for ‘no means no’.
— Grüne im Bundestag (@GrueneBundestag) 28. April 2016
“We are hugely hopeful that within a few months no means no will be passed by the Bundestag,” Lunz said.
But even once that is accomplished, there will be plenty left to fight for – and Lunz believes she has the formula to make the change possible.
As well as keeping up the pressure that’s pushed feminist issues into the public debate – something she says has hugely grown over the two years she’s been campaigning – “what would help our society the most is if we all examined our privileges more often,” she said.
“I, for example, ask myself what it means for my life to have white skin. Or there are the unbelievable privileges that men have, being less likely to suffer rape or sexual harrassment.”
“These privileges can influence our politics, and we really ought to think about them more often. I think we’d have more regard and respect for one another if we did that.”