ONTD Political

Court: saying 'no' not enough to stop sex

8:39 am - 09/16/2012

A German teenager who said she was raped by a 31-year-old man was told by the judge she had not defended herself enough for the law to convict him – simply saying no was not enough.

The case caused outrage this week when the judge at the Essen district court reportedly told the girl, “If one does not want something, one must make it clearer.”

A statement issued by the court on Thursday said this was not the case and that the judge had simply explained the legal situation.

German law demands that one of three factors be proven for a rape conviction – the accused must either use force, threaten to use violence or exploit the fact that the victim is in a defenceless situation.

None of these three things could be proven in this case and the judge did not convict the man accused. Even the prosecutor had recognised the case could not be won and agreed to the acquittal.

The girl was just 15 when she said the man forced her to have sex with him. She had been with him and two adult women during a long, boozy night in Marl, near Recklinghausen, North-Rhine Westphalia.

A court statement said the man, identified as Roy Z., had been very drunk and had smoked a lot of cannabis during the night in question, in July 2009.

At the end of the night, the four lay down to sleep in the living room of a flat in Marl. Roy was on the sofa and the girl with the two other women on a mattress on the floor.

But before they went to sleep, Roy told the two women to leave the flat and go down to the cellar.

They did so without asking why or protesting – both knew that he reacted very aggressively when not obeyed, the court said. He had already beaten up one of the women so badly that night that he is currently serving a three-and-a-half year sentence for grievous bodily harm, Der Spiegel reported.

The physically strong man and the girl had sex, despite her having told him, “No, I don’t want to,” the court heard.

“This is not enough to meet one of the three conditions laid out in paragraph 117 of the criminal law code,” Wolfgang Schmidt, spokesman for the court and a judge himself, told The Local.

“The door to the flat was unlocked, it was in a building with other flats. She could have left with the other women or called out for help, for example. There was no evidence presented to the court of violence being used, or threatened, and her position could not be described as defenceless.

“He is said to have told her he wanted to have sex with her and pulled up her skirt, and pulled down her underwear. She said she didn’t want to. And although I do not want to put any guilt onto the girl, she could have then shouted or run away.

“When her lawyer describes what happened as a human catastrophe; that is something I can understand.

“But what we understand as people may be different from what the law can decide.”

The girl’s lawyer Dirk Brockpähler told The Local that as a person he found the verdict “a catastrophe,” but that as a lawyer he saw the logic in it. He said a ruling from a higher court on a different case led him to surmise that if the girl had bitten or scratched the man or screamed, it would have been a different matter.

“That is the law in Germany, people have to understand this – the law is limited. The accused has the right not to say anything, and in this case he made full use of that right, which we have to respect.

“If there is no way of determining a person’s intent, and there is not a completely clear catalogue of evidence, the court has to find in favour of the accused. In this case the facts were borderline.

“What is good is that this has sparked a discussion and perhaps the law could be changed as a result.”

He said the girl had decided not to appeal the verdict after a long conversation. “I asked her, after explaining the legal situation, whether a fly on the wall would have seen anything that would have legally made it rape and she said no.

“There has been an enormous reaction to this. One has to say, I think the court would have liked to have reached a different verdict.”

Hannah Cleaver

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sobota 16th-Sep-2012 06:55 pm (UTC)
oh wow... ...

i can't even describe how disgusting this is, and how horrible this situation is. this is a TEXTBOOK case of victim blaming, right here.
randomtasks 16th-Sep-2012 06:55 pm (UTC)
He had already beaten up one of the women so badly that night
And you didn't take that into account into why she didn't "fight back"?
suwiel 16th-Sep-2012 07:58 pm (UTC)
This is the biggest issue for me! How does that not somehow fall into the "exploit the fact that the victim is in a defenceless situation" part of their law?
kaelstra 16th-Sep-2012 07:06 pm (UTC)
Could we please get a trigger warning for rape on this?
ruby_chalice 16th-Sep-2012 07:11 pm (UTC)
"And although I do not want to put any guilt onto the girl, she could have then shouted or run away."

Oh I give up. How is this 'human' allowed to precide over judgements in a court of law?
_cheshire 16th-Sep-2012 07:12 pm (UTC)


And although I do not want to put any guilt onto the girl, she could have then shouted or run away.

ugh, this dickweed and his whole ~I don't want to blame the victim but I'm going to blame the victim anyway~ BS. I mean, god forbid a 15 year old child be too terrified to fight back against a large grown man with a history of violence.

scolaro 16th-Sep-2012 07:30 pm (UTC)
I seriously don't understand this case. The girl is 15 years old - why does it even matter if she didn't scream or fight back? She's a minor, the guy twice her age - he should be in jail for that reason alone.

The judge had no real choice on this, since even the prosecutor agreed to the acquittal. But boy, would I love to hear the reason for that...
ellonwye 16th-Sep-2012 07:34 pm (UTC)
What is the fucking DEAL with this?

You're a victim of a crime.. but not enough of a victim because you didn't endanger your life trying to prevent it. I mean, would anybody say that to someone who gets their car stolen from under them? You didn't throw yourself in front of the car to stop them driving away so I guess you didn't want that car enough, so it's not really theft?
readyfuels 16th-Sep-2012 07:47 pm (UTC)
German law demands that one of three factors be proven for a rape conviction – the accused must either use force, threaten to use violence or exploit the fact that the victim is in a defenceless situation.
She was 15 and he was a grown man with a proven violent streak. As far as I see it, all three criteria were met.
red_pill 16th-Sep-2012 07:52 pm (UTC)
leaving aside that the german law is...not very good...to put it mildely, given that he had already beaten a woman that night, is it not argubley, nay, clear, that the threat of violnce was implisit within the sisution, and there for it meats the second of the three critria?

i mean, im no lawer, but that dosent seem like a push to me
mollywobbles867 16th-Sep-2012 08:41 pm (UTC)
My nails are really long right now. How about I claw this judge's eyes out. Is that enough for men to stop oppressing women?
fluorescenta 16th-Sep-2012 08:46 pm (UTC)
The age of consent in Germany is 14, as long as a person over the age of 21 does not exploit a 14–15 year-old person's lack of capacity for sexual self-determination, in which case a conviction of an individual over the age of 21 requires a complaint from the younger individual; being over 21 and engaging in sexual relations with a minor of that age does not constitute an offense in and of itself. Otherwise the age of consent is 14, although provisions protecting minors against coercion apply until the age of 18 (under section Section 182(1) it is illegal to engage in sexual activity with a person under 18 "by taking advantage of an exploitative situation"[19]). (source)

I'm more of a biology/scientific person and I don't really understand legal talk all that well, tbh... but how do these laws not apply? With how she complained/took it to court?
the_physicist 17th-Sep-2012 11:08 am (UTC)
i don't understand either. it's statutory rape from where i'm looking at this too. and that is how i understood the situation to be too when i lived in Germany. not that these laws existed for no reason at all.
harumi 16th-Sep-2012 08:57 pm (UTC)
Is there anyone here from Germany who could give their perspective? Because right now, it looks like German laws are fucking shit when it comes to protecting rape victims.

milchzucker 17th-Sep-2012 01:49 am (UTC)
Actually this case went through half of the German blogosphere and newspapers. Only under the age of 14 you count 100% as a kid so even if the person you've slept with has a video where you agree to sleep with him/her or even the both of you are officially a pair it still counts as child abuse/ rape. The rule here is: A person under the age of 14 can not decide if it wants to have sexual contact with an adult so whatever he/she says doesn't count/ isn't recognized and it's automatically illegal (that is, if it's going to court). But being 15 and having sex with a man twice your age isn't against the law as long as both of them want it. Truth is, especially if the vicitm is underage, rape cases are normally handled pro victim.
So yes, even if in lots of cases the penalty is a fucking joke compared to e. g. economic crimes, it's normally still pro victim and in most cases imprisonment will be ordered. Germans can't understand this decision for the same reasons people here complain. Of course she won't try physical defense if she knows he could realistically kill her easily. Nobody here gets the judge's decision, even under the "innocent until proven otherwise" line.

Edited at 2012-09-17 01:58 am (UTC)
layweed 16th-Sep-2012 09:00 pm (UTC)

ETA: okay that second part sounds weird, but you get my idea. wtf @ the judge

Edited at 2012-09-16 09:01 pm (UTC)
harumi 17th-Sep-2012 03:17 am (UTC)
Ugh, the second part is what my mom thinks. She thinks persistent guys are romantic. And that it is necessary for guys to ignore "no" to get a girl. *bangs head against wall*

I haven't told her that I've been stalked before. I wonder how she'll react to that.
ebay313 16th-Sep-2012 09:06 pm (UTC)
" her position could not be described as defenceless."

Hows that? She was 15, left alone with a violent adult man whom she likely had no real chance of successfully fighting off, and from the article it is unclear but it sounds like she may have also been drinking that night?

Also as others have said, him beating another woman so badly in front of her for not doing what he said clearly presented a threat of violence against her if she also did not do what he said. This is ridiculous and that judge is a victim blaming piece of shit- there is absolutely no excuse for him telling her she could have and should have screamed, ran, hit, scratched, et cetera if she REALLY wasn't consenting. And I think it's pretty bullshit that even her lawyer is agreeing with him. That girl deserves a better laywer.
kyra_neko_rei 16th-Sep-2012 09:58 pm (UTC)
Let me see:

We have: a victim aware that the man had already severely beaten a woman that night (1); a man that had a known reputation for "reacting very aggressively when not obeyed" (2); a man that moved her clothes away after she said no (3).

Now, I'd think anyone with a survival instinct can read between the lines here to see the threats---he certainly didn't have to tell her anything to make her understand that 1) he sees nothing wrong with beating a woman "severely" when not obeyed and 2) he doesn't care in the slightest whether she consents to sex or not.

That's a threat. That's why she didn't scream or fight or try to leave---the threat was already in play. He didn't say to her "I will beat you if you interfere with me having sex with you," he communicated "this is what happens to women who interfere with me" earlier in the night, using the other woman as the example.

Additionally, people without male privilege (such as the victim) will generally understand further complications---for example his singling out the other two women to tell them to leave; she may have felt unsafe trying to get up and leave as well, or that she had no "socially acceptable" excuse to do so. Socialization to not be "awkward," to ignore our suspicions and give men the benefit of the doubt, is very paralyzing. So is fear; so is the realization of what is happening in a situation like that. Many, many people have been assaulted, have been groped, what-have-you, and just frozen up; all their plans and all their "I would do this"es fly out the window and they can't, don't dare, do anything. Rape gets in under your defenses; it gets in and starts causing pain when your defenses are still keyed to fight something that's further out.

Also, being lying down on a bed with someone above you? That's a pretty defenseless situation, there. Especially with someone bigger and demonstrably more violent than you. An unlocked door still has to be opened; to run, even if you manage to get up, is a gamble that you're significantly faster than he is, and screaming for help is a gamble that anyone will bother to help you and that they will arrive in time. Parents may come running if they hear their child scream, but strangers are more likely to cautiously see what it is, or call the police, or assume someone else will handle it, or be cautious lest they interfere with someone else's business.

There are plenty of threats here. The judge is just sufficiently privileged to not see them.
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