“Communication is Key”
Tatjana Hörnle sheds light on current models for the law on sexual offense in Der Standard
Norway recently passed a new law on sexual offenses based on the “yes means yes” principle. In a first vote, the parliament in Oslo voted in favor of the new law by a large majority. Under this law, sexual intercourse is only considered consensual if explicit consent is given, either in words or through behavior. A higher threshold applies if refusal has been communicated. In an interview with the Austrian daily newspaper Der Standard, criminal law expert Tatjana Hörnle explains the Norwegian model.
According to the criminal law professor, there are currently three newer models that shape the law on sexual offenses: Under the “no means no” principle, which has been in force in Germany since 2016, a “no” must either be spoken or communicated in another form, for example through gestures such as shaking one’s head. “Only yes means yes” is also aimed at communication. In this case, a “yes” must be spoken or consent must otherwise be clearly signalized – either verbally or non-verbally. The third option is to base the law on inner willingness or “voluntariness”. This model is not based on communication but on an inner positive or negative attitude.
“All models share the problem of proof,” Hörnle tells the Austrian daily newspaper Der Standard. According to the expert, the question of which model is better must be based on other criteria. The law should reflect a standard of conduct that makes it clear that communication is required. The red line between legal and illegal behavior should therefore be drawn along the lines of communication, i.e., evaluating what is visible to the outside world – it is not about inner states of mind.
“From a moral point of view, I would of course say to someone: if a person is behaving passively, then please ask,” says Hörnle. Unfortunately, criminal law cannot cover everything that is morally unacceptable.
Tatjana Hörnle is director of the Department of Criminal Law at the Max Planck Institute for the Study of Crime, Security and Law and honorary professor at Humboldt-Universität zu Berlin. In 2016, she advised the German government as an expert on the reform of the law on sexual offenses.
Reform des Sexualstrafrechts: Warum Norwegen „Nur ja heißt Ja“ will. Der Standard on June 24, 2025 (paywall).
