Are Rape and Other Sexual Offenses Punished too Leniently?
Guest commentary by Tatjana Hörnle in Der Spiegel
In recent weeks, the appropriate punishment of sexual offenses has sparked a heated discussion in the law community. The debate was ignited by two legal scholars who have called for a rethinking of the justice system as well as more resolute punishment of sexual offenses. For Tatjana Hörnle, director at the Max Planck Institute for the Study of Crime, Security and Law, the restraint shown by German courts when determining sentences is largely an achievement, as she explains in a Der Spiegel guest contribution.
According to legal experts Elisa Hoven and Frauke Rostalski, the courts need to fundamentally reconsider their approach to punishment, especially of sexual offenses. In an article published in the Frankfurter Allgemeine Zeitung (FAZ) at the end of last year, the two authors wrote that current sentencing practice stems from a time when sexual assaults were far too often trivialized. They had examined 86 district court and regional court convictions for sexual offenses spanning five years. All of the sentences handed down were in the lower third of the statutory sentencing range, the authors wrote in the FAZ.
The article by Hoven and Rostalski was followed by a scathing review from former federal judge Thomas Fischer in Legal Tribune Online (LTO). In this piece, Fischer questioned the professional competence of the two authors and the scientific soundness of their studies.
The restrained sentencing practice in Germany is an achievement
In her recently published guest opinion in the news magazine Der Spiegel, Tatjana Hörnle, herself a criminal law scholar with a large body of research on sexual criminal law to her credit, takes a look at the debate. She explains that the figures from Hoven and Rostalski make it appear at first glance that there is a history of lenient sentencing of rape in Germany. The underlying assumption by German courts that a less serious case is at issue, for instance, if the victim was married to the perpetrator, should be viewed especially critically. It is important, however, not to overlook how sentences for other crimes are determined: German courts not only impose lower sentences for sexual offenses than the law on the side of the books suggests, but also for aggravated robbery, for example.
Hörnle goes on to explain that, if one is generally in favor of harsher punishment for sexual offenses, other offenses would also have to be punished more severely. The consequence would be that more people would be imprisoned – with all the human, social, and fiscal consequences we are familiar with from the USA.
"The restrained sentencing practice in Germany is an achievement," concludes Tatjana Hörnle. It is important to avoid blatant injustice in individual cases, but it does not make sense to generally and systematically seek more severe punishment for entire offense groups.
In addition to addressing the studies of her peers, Tatjana Hörnle takes issue with the highly polemical article by Thomas Fischer in LTO.
Sources:
- „Sexualstraftaten und Justiz: Werden Vergewaltigungen und andere Sexualdelikte zu milde bestraft?“ – Guest commentary by Tatjana Hörnle in Der Spiegel on 20.01.2024 (paywall)
- „Übergriffe härter bestrafen“ – Article by Elisa Hoven and Frauke Rostalski in Frankfurter Allgemeinen Zeitung on 27.12.2023 (paywall)
- „Sollten Richter bei Sexualstraftaten härter urteilen?“ – Article by Thomas Fischer in Legal Tribune Online on 06.01.2024
