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Correctional officer in Berlin prison
Photo: Jens Kalaene/dpa
Since the reform of sexual offenses in 2016, the German criminal code has covered all types of punishable injustice, from a brief sexualized touch to the most brutal attacks.
The range of punishments is wide: it ranges from a fine (for sexual harassment) to 15 years' imprisonment for serious sexual offenses.
Criminal courts can and must choose from a range of possible sentences for each conviction.
A current debate deals with the questions: How should sentencing decisions be evaluated?
Do punishments match the seriousness of sexual crimes?
Should something change in sentencing practice?
In short: Are sex offenders punished too leniently?
My two colleagues Elisa Hoven and Frauke Rostalski presented their theses in the “Frankfurter Allgemeine” on December 28, 2023.
Thomas Fischer, former judge at the Federal Court of Justice and SPIEGEL columnist, presented his view on “Legal Tribune Online” on January 6, 2024.
First of all, a note about style.
It is surprising how Fischer disparages the female authors (or not surprising if you have followed the derogatory comments about women in his journalistic career).
Fischer emphasizes at the beginning that criminology is “a demanding subject” in order to cast doubt on the professional suitability of the professors.
He suggests that it is offensive to mention results in a daily newspaper before scientific publication, which is not true.
Fischer, slipping smoothly into the role of criminologist, presents an interesting thesis on the prosecution of sexual crimes: "There is much to suggest that the actual number of crimes has decreased since 1990, while the density of prosecutions has increased massively."
He does not say where this knowledge comes from.
In any case, police crime statistics do not allow a distinction to be made between the frequency of crimes, the frequency of reports and the intensity of investigations.
A legal-historical thesis follows.
Quote Fischer: “Sexual crimes are punished more harshly today than they were a few decades ago.” Here too, it remains unclear how he came to this conclusion.
In the role of the much-sought-after universal provider of information, one can - this is probably Fischer's premise - forego the sources and training that one simultaneously accusingly demands of female scientists.
Now to the considerations that Hoven and Rostalski make.
There are two theses in her contribution.
On the one hand, it is about individual judgments with low penalties.
On the other hand, it is suggested that there is a much broader problem: “Fundamental rethinking” is required.
In the headline (presumably chosen by the editors) the catchy formula “Punish assaults more harshly” was used.
This is a general statement that goes beyond the “sometimes too lenient” statement.
more on the subject
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Hoven and Rostalski rightly criticize the sentence in two judgments.
Both cases involved rape of the wife.
The fact that these judgments were not legally binding does not matter, contrary to what Fischer argues.
It's about how some (not all) judges think and reason.
The law stipulates a minimum prison sentence of two years for rape and at least five years for threats with a knife.
In fact, a significantly lower sentence was imposed in each case - and this was suspended.
The two judgments were not based on an obvious violation of the law: there is the possibility of deviating from the standard penalty.
But the question remains as to how one could come up with the idea of assuming a mild case under the circumstances described.
One explanation could be that judges sometimes still (consciously or unconsciously) follow the maxim that rape is less serious in marriages and relationships.
Thomas Fischer, who has criticized the modernization of sexual criminal law for many years, cites "the longer-lasting intimate relationship" as a possible reason for a less serious case in his StGB commentary.
That's not convincing.
A close relationship between the perpetrator and the victim and the breach of this relationship of trust does not reduce the injustice, on the contrary.
For good reasons, Article 46 a) of the Istanbul Convention (Council of Europe Convention on preventing and combating violence against women and domestic violence) classifies it as aggravating the punishment if the victim was the partner or wife.
Outdated ideas about the supposedly lower level of protection of some victims or about the victim's complicity must be criticized (in one of the cases the punishment was lighter because the victim had failed to educate her husband accordingly).
Incidentally, this also applies to sexual offenses against prostitutes, which some judgments I have read also assumed to be “less worthy of protection”.
Criticism does not depend on how often mistakes occur.
Punishments should always be consistently aligned with the injustice of the crime, i.e.
H.
accurately measure the injustice done to the victim.
Another question is which general statements about the level of punishment are sufficiently empirically proven and, above all, which conclusions can be drawn.
As part of a research project led by Elisa Hoven and Thomas Weigend, 86 cases were evaluated.
The average sentences were only slightly higher than the minimum sentence provided for in the law.
Fischer considers the number of 86 cases to be far too low (and he suspects that 30,000 verdicts were handed down in the five years for which criminal verdicts were analyzed - he is far off the mark; according to criminal prosecution statistics, there are much fewer).
Unfortunately, it is not easy to determine average penalty levels.
There is currently no nationwide database that would allow comprehensive statistical analysis.
Evidence comes from the criminal prosecution statistics published by the Federal Statistical Office.
At least you can see there how often courts accept a less serious case (based on the number of judgments with penalties that the law classifies as too low for the usual case).
If you focus on the percentage of cases classified as less serious, abnormalities become apparent.
The statutory minimum punishment or standard punishment is regularly undercut.
As an example, figures for 2021 (calculated by me based on criminal prosecution statistics): 45% of all rape convictions imposed lower penalties than the law stipulates for normal cases.
For particularly serious acts (gang rape, use of weapons, serious injuries, etc.), the proportion of cases that were classified as less serious was still at least 26%.
At first glance, one might conclude that these figures support the hypothesis that punishment for rape is too lenient.
However, the situation with other crimes should not be ignored.
At this point Fischer agrees: Statements about an allegedly unusually lenient punishment practice for sexual offenses require comparisons.
The German courts' preference for punishments that are lower than the law suggests does not only apply to sexual offenses.
For aggravated robbery (robbery with weapons, by gangs, etc.) the value is similar to that for rape: in at least 43% of all verdicts in 2021, a less serious case was assumed.
One conclusion would be to examine more closely the circumstances that lead courts to go below the minimum sentence for regular cases.
It could turn out that not all justifications are convincing.
But Hoven and Rostalski go even further.
They call for harsher punishments in general, instead of just avoiding errors in the assessment of individual cases (including an unconvincing classification as a less serious case).
The demand would apply to all criminal courts: If one generally supports higher penalties for sexual crimes, one would consequently have to extend this demand to other crimes with serious consequences for individual victims, such as serious bodily harm or robbery with weapons, if the analysis also shows a low level of punishment there .
But: would that be desirable?
The result, it must be said clearly, would be an increase in the number of people in custody.
If you follow the international comparisons of prison numbers and the international discussion about harsh punishment practices, restraint is advisable.
In the United States, but also in other countries, there is strong and well-founded criticism of the human, social and fiscal consequences of high sentences and high incarceration rates.
The restrained criminal practice in Germany is an achievement.
Therefore, my conclusion would be: Problematic assessments of injustice in individual cases should be avoided, even if this means that reduced sentences are not possible in these cases.
On the other hand, it does not make sense to generally and systematically aim for harsher punishments for entire groups of crimes.