The XX Factor

According to German Law, the Cologne Sexual Assaults Aren’t Even Crimes

Members of right-wing populist groups protest on Jan. 9 in Cologne after hundreds of sexual assaults on New Year’s Eve.

Sascha Schuermann/Getty Images

Since New Year’s Eve, when a rash of hundreds of public sexual assaults shook the city of Cologne, Germany, the rest of the world has watched closely as German police try to bring the perpetrators to justice. The cases have taken on partisan import for right-wing politicians: Most victims said their assailants were of Middle Eastern or North African descent, and prosecutors found that many of the suspects were petitioning the German government for refugee status. Anti-immigrant officials across Europe have used the attacks to shore up bias against Muslims and the refugees flooding their borders from Syria.

The prolonged horror and picking-apart of the New Year’s Eve attacks has spurred a revelation among German residents, BuzzFeed’s Jina Moore reports. Until prosecutors ran into it in their cases, many Germans were unaware of an insidious anti-woman bias at the center of the country’s legal codes: Most of the nonconsensual sexual acts committed against hundreds of women on New Year’s Eve do not run afoul of German law.

In Germany, it’s perfectly legal to kiss someone without her consent, grab her breasts, or fondle her genitals in a public space as long as she doesn’t fight back. An editor of a German feminist magazine told BuzzFeed that German law “accepts that a man generally has the right to touch a woman, to have sexual intercourse with a woman. It’s his right, unless the woman shows her resistance very, very strongly.” If the assailant touches a woman’s genitals quickly, before she has time to resist, he’s in the clear.

Moore reports that, to prevent sexual assault cases that pit the alleged victim’s testimony against the alleged perpetrator’s, there must be physical evidence of forcible sexual assault to constitute a crime:

As far as the law is concerned, verbal consent isn’t really the issue. The law focuses instead on the overwhelming force of the perpetrator, requiring that there be a “threat of imminent danger to life and limb.” For a court to rule that a woman was raped, and the justice system to put a rapist behind bars, a woman must physically, exhaustively resist her perpetrator. If she can’t prove with her body—with bruises or other injuries—that she fought back, the assault isn’t really a crime.

In one 2012 case, a German court declared innocent a man who’d forced anal sex on his wife, who’d refused. The court affirmed that, because she didn’t scream, physically fight him, or try to escape from their home, there was no way for her husband to tell if she really didn’t want it.

Women’s rights advocates contend that there are types of force that don’t leave a mark—threats, prolonged abuse, the type of sneak attacks that emerged in Cologne—and no one should have to submit themselves to further physical harm just to prove they were raped. Observers from around the world were uniformly appalled at the prospect of groups of organized men seizing upon a crowd to grope and sexually assault around 467 women. Activists hope that the scrutiny and shock will spur a long-overdue change in German law.

The extra attention has made strange bedfellows of feminists and right-wing activists, the latter of which have taken up the rhetoric of women’s rights to support racist propaganda about immigrants and non-white Europeans. Small-town German men, the likes of whom once spurned feminist claims of a sexual violence epidemic, have suddenly become anti-rape activists, forming a vigilante police force to check IDs on the streets in defiance of actual German law enforcement agencies. The issue of women’s safety has long been co-opted by nativist Germans, Moore writes:

That the perpetrators on New Year’s Eve were foreigners—not European foreigners, but dark-skinned men who have nothing more in common than the assumption that they were somehow Arab—has fed a primal fear: that no one is protecting “our women,” who are now, clearly, at risk from “them.” This is also an old narrative in Germany. Images of white women helpless before dark hands on their breasts or around their waists were common in colonial propaganda. After the events in Cologne, a right-wing magazine tapped into that visual historical memory with a cover image of a white woman with crystalline blue, terrified eyes and a dark hand clamped around her mouth.

Because police didn’t release full reports of the New Year’s Eve tragedy for several days, conservatives have accused Cologne government officials, media outlets, and feminist activists of downplaying the attacks to mask the fact that they were largely perpetrated by non-German, dark-skinned men. Both German Chancellor Angela Merkel and Cologne Mayor Henriette Reker have adopted welcoming stances toward refugees; some right-wingers have suggested that police and the media were trying to protect their politics.

Now, in Germany and around Europe, there’s a battle over the narrative of the night that saw dozens of men sexually violate hundreds of women. Moore points to an essay by Algerian sociologist Marieme Helie Lucas, which further complicates the issue: Lucas argues that the crimes of Cologne are typical of countries that are Muslim and patriarchal by law, and European feminists exhibit a different kind of racism by refusing to see the relevance of similar incidents in Tunisia and Tahrir Square during the Arab Spring.

But women’s rights advocates in Germany are protesting the use of racist propaganda in the name of women’s safety with a group called Ausnahmslos, which Moore translates as unexceptional. The group stands to highlight the fact that sexual assault is no rare occurrence in Germany—it happens every year, for instance, at Cologne’s raucous Carnival, where officials set up a “safe zone” for the first time this year in response to the New Year’s Eve assaults. To perpetuate a narrow depiction of sexual assault as an act of refugee men against white women ignores the everyday reality of the offense. That said, this might be the spotlight right-wingers needed to see the cruelty of German law, which doesn’t even classify the attacks of New Year’s Eve as crimes.