Should Section 177 German Criminal Code (StGB) be Extended to Criminalize Negligent Sexual Assault?

Should a person be criminally liable for sexual acts that involve circumstances of mistaken consent? This disser­ta­tion discusses whether negligent sexual assault should be criminalized under S. 177 StGB (a position advocated by Hörnle and Jerouschek twenty years ago), and if so, how this could be accomplished.
Under current German law, mistaken consent to a sexual act is treated as a mistake of fact. According to S. 16 (1) 1 StGB, the effect of a mistake of fact is that the requisite mens rea component of criminal liability is not fulfilled. This means that if someone is mistaken about another person’s consent to a sexual act that he or she has com­mit­ted – regardless of how avoidable or how severe the mistake was – this person cannot be convicted of sexual assault under current German criminal law.
While a possible caveat that would allow for a person to be convicted of a negligent criminal act exists through S. 16 (1) 2 StGB, this does not apply if the specific criminal offence requires intent by statutory order. As sexual offences, such as those criminalized in S. 177 StGB, require intent (in contrast to common law jurisdictions), a negligent act cannot be criminally punished under current law.
To illustrate that this is a practical as well as a theoretical concern, cases are presented where perpetrators were acquitted due to a gross mistake concerning consent. These cases include (but are certainly not limited to) cir­cum­stances involving personal relationships, cultural mistakes, intoxication-induced mistakes, and “gender-specific” mistakes. This dissertation demonstrates the inherent wrongfulness and harmfulness of negligent sexual acts and argues that these acts should therefore be criminalized.
Having outlined the current legal position in Germany, as well as the issues this position causes, the focus turns to presenting a solution to how (grossly) negligent mistakes and behavior in the sexual context could be criminally punished. As a rule, negligence under German law requires the breach of a duty of care. While such duties exist in other areas of law (such as road traffic regulations), no such duties are specified in private contexts.
It is particularly difficult within the sexual context to define obligations and therefore describe what constitutes a negligent act, as these are core elements of a person’s private life. To establish duties of care in sexual contact, a closer look is taken at studies concerning sexual communication and sexual behavior. In addition to empirical re­search, normative aspects are also considered. Both the negative dimension of sexual autonomy – to be protected from interference – as well as the positive dimension – to be able to engage in freely chosen sexual encounters – must be considered. The difficulty lies in presenting a viable solution to balance these dimensions. This disser­ta­tion therefore examines the requisite circumstances for an act to amount to (gross) negligence under English and Welsh, Swedish, and Norwegian law. In each of these jurisdictions, (grossly) negligent sexual assault or rape al­ready constitutes a criminal offense.
Based on these findings, the dissertation discusses how S. 177 StGB could be amended to criminalize (grossly) negligent acts in German Law.