Sexual criminal law: Finally something to do!

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Demonstration against abuse at Pariser Platz in Berlin (archive picture from 2013)

Photo: IMAGO / epd

The, that and the sex

Today we are dealing here once again - even if this may tire some readers and still seem too rare for others - to questions of the sexual, the criminally sexual and the protection of people from the latter.

Man is, to put it conservatively, man or woman, one of the two, sometimes even a mixture.

Or "child".

Even if a woman or a man is very old, very ill or has dementia, they always remain – among us – man and wife, something that the legal community and society think they know halfway.

Even a nursing home inmate with advanced dementia is always a woman or a victim in the context here, but never a “child”.

Criminal sexual acts with women or men are regulated in Sections 174 to 174c and in Sections 177 and 178 of the Criminal Code (StGB).

It also states (in § 176 para. 1) who or what a "child" is in the sense of this law: A person under the age of 14.

This is not a law of nature, but a limit chosen by the legislature, which is considered sensible for factual reasons, but is of course not mandatory: One could have said 12 years (marriageable age in many societies!), 15 or 16 years without that this would have been right »wrong«.

The UN Convention on the Rights of the Child even describes all persons under the age of 18 as »children«.

It's clear that there are childish 19-year-olds and "precocious" 13-year-olds, but you have to set the limits of judgment and certainty in the law, because that's its nature.

If one had to treat every person who behaved as "childish", "immature" or irresponsibly as a "child" in sexual criminal law,

The rigid age limit of up to 13 years (children) and up to 17 years (adolescents) is not the only thing that requires a certain differentiation in the assessment in the reality of life.

Everyone knows that injuries, disturbances, etc. can range from very light to very serious;

this is everyday experience.

An example: calling every bruise an "atrocity" would not only be a bit silly, it would also make it impossible to assess the individual case.

Willful bodily harm can be punished with a five-day fine or 10 years imprisonment.

Anyone who enters the exam with the belief that every injury is a "horrible act of violence" loses all standards.

This applies to

Criminal offenses, including those against sexual self-determination.

Anyone who thinks that under no circumstances should anything be "relativized" has really not yet understood the point of the matter.

special investigation

On May 31, 2022, the Federal Criminal Police Office (BKA) presented a "special evaluation" that was mostly referred to in the media as a "special evaluation of sexual violence against children".

This designation is not quite correct, because the statistics mainly deal with crimes that are

"Violence" in the common sense, as well as communications crimes, particularly child pornography-related offenses.

But the terms "sexual violence" and "sexualised violence" (I haven't yet figured out what the difference is) are now well established as triggers for attention and outrage and are therefore undauntedly used for "framing", although the legislature in the 2021 has expressly and consciously refrained from introducing such a conceptual standard sauce instead of the proven conceptual differentiation of abuse, coercion, violence, threat, coercion or assault.

more on the subject

"Disgusting form of crime": Faeser wants to fight sexual violence against children on the Internet with severity

Headline results, for example only: "Sexual abuse of children is increasing";

»Average 49 underage victims per day«;

and »Bild« found out that »after the shock figures (...) millions of Germans are asking: What are those responsible in politics doing to put an end to this horror for children?« It was considered particularly bad that the number of offenses had increased in connection with child pornography (§ 184b StGB) doubled within one year.

It has not been researched whether the millions who yearn for new, tougher measures also knew that in more than half of all child pornographic acts the suspects were children and young people between the ages of 12 and 17 and that their number has increased tenfold within five years .

It should only be mentioned in passing that the apparently very simple question of what "child pornography" actually is and how it differs from other, less punishable pornography can only be answered completely unproblematically if one focuses on "evidence" (obviousness). and is based on the hints that one reads in the press about the »traumatizing« files, which nobody (journalists, readers, viewers) actually knows, but can only »imagine«.

Here, too, one can only say: the core of the term is easy to understand, but the limits are, as always, difficult.

As a result, if you bear responsibility, you absolutely have to think in depth about the meaning and purpose and the social embedding of such a concept.

Most people save themselves – and rightly so –

who consider the matter settled with the statement that messes should be punished and that a decent person already knows what a mess is and what isn't.

I do something similar when I ask what happened in the universe 10 to the power of 16 Kelvin, or when discussing the advantages and disadvantages of dental implants.

statistics

more on the subject

Doubled from 2020: Police detect significantly more child pornography cases

A few comments on the statistics: As is almost always the case, the reports came exclusively from the »PKS«, the police crime statistics.

Just by looking at the titles and headings of this statistic, you know that it is

tell whether any crime has been "increasing" or "decreasing," "increasing" or decreasing.

As said many times at this point: The PKS is a statistic about

and about

.

Anything that becomes known to the police from somewhere counts as a “report”, including all findings from general, undirected investigations.

Anyone who is considered a »perpetrator« in the statistics mentioned is in fact only »a suspect«.

It is not at all possible for the police to determine whether the "suspect" actually committed the crime.

In the statistics, however, every case in which any person is entered as a "suspect" (for whatever reason) is referred to as "solved".

This is a gross conceptual misrepresentation.

The PKS is not a statistic about “deeds” and “perpetrators”, but a statistic about the activities of the police.

Therefore, the usual banalities about the so-called "dark field" are misleading.

“The number of unreported cases could be much higher” is a standard phrase in this context.

That's right: The meaning of the term "dark field" is that it is "dark", i.e. not known.

The dark field could also be

because before the proceedings are completed, one does not even know how many non-existent crimes were in the "bright field" of the PKS.

You only know that for sure if you look at the individual procedures in detail;

you can get a rough idea if you read the “legal administration statistics”, which record the results of the proceedings (Federal Statistical Office, Legal Administration, Fachserie 10, 2.3 and 3 series).

This statistic is harder to read than the PKS and structured differently, so few people bother to compare them.

But that could usually be worthwhile, if only because it then turns out, for example, that the number of proven offenses leading to a conviction is often only one tenth of the "cases" reported in the PKS.

justifications

The "special evaluation of the BKA" is clearly summarized on seven colorful table pages that are easy to find on the Internet.

I recommend that any reader who is interested in the subject take a quarter of an hour to look at it a little more closely.

One can find some statements that raise questions and cast doubt on the quick answers that are often given.

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Thomas Fisher

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It starts with general violent crimes: 20 percent more for murder and 8 percent for manslaughter within one year - each related to acts against children and to the comparison between 2020 and 2021.

But minus 62 percent for bodily harm resulting in death.

This can hardly be due to the fact that violence in families has increased "because of Corona", because then all the numbers would have to have increased.

The obvious assumption is that significantly more killings of children were "defined" by the police as intentional homicides - for whatever reason.

It remains unclear whether and what the reality behind it is.

Because the total number of children killed by intentional crimes hardly increased between 2017 and 2021.

The doubtfulness of the "Corona" reference becomes even clearer in the case of attempted homicides:

Minus 40 percent (in the case of murder 60%)!

It is not plausible that "Corona" should lead to more accomplishments with significantly fewer attempts.

Incidentally, the conditions of the pandemic have of course also led to a change in reporting behavior.

A similarly unclear picture emerges for sexual offenses: completed child abuse up 4 percent, attempts up 16 percent.

This is difficult to explain except by reporting behavior and police definition and reporting.

It's really not possible to say seriously whether anything became »more and more«.

Mainly because the cases of »assault, sexual assault and rape« of children have decreased by 7 (completion) and 52 (attempts) percent respectively.

The Federal Commissioner for Questions about Child Sexual Abuse formulated correctly: It cannot be said whether the number of cases is actually increasing.

The statistical evaluation of the suspected cases of child pornography is dramatic and illuminating.

Here one can assume that there is no case without a real "act" - i.e. at least one file - and since each file usually has some data storage owner attached to it, the "clearance rate" is correspondingly high - as with BtM acts: First if you search the perpetrator, you will find the hashish.

Enlightenment 100 percent!

If you try to visualize what you have read and heard over the past 10 years about the “increasing” expansion of search capacities, the establishment of special departments, the further development of search programs, etc. in connection with child pornography, then it would be irrational to assume that the number of cases discovered must have remained the same or even decreased.

If you use 50 times more power to search the Internet, you'll probably find 25 times more than before.

Anything else would be a miracle or could only be based on the fact that there is a fixed, unchanging number of actual cases.

The result of the evaluation that was most disturbing for many, but which was often only marginally mentioned in the press, was that with an increase of 108 percent in cases of child pornography - the majority of which are due to the mere possession or acquisition of relatively few files accounted for and only a small part of the spectacular gang attacks and isolated "networks" - the majority of the registered crimes were committed by children and young people.

These acts as such therefore have nothing to do with "pedophilia";

they are committed out of curiosity, self-importance, puberty imprudence and sensationalism, also out of lust for the forbidden.

It is just as difficult to "prevent" them altogether or to stop them by means of "tough measures" and threats of punishment as it is to circulate pornographic jokes among young people.

As a precautionary measure, this is by no means meant to say that "hard" child pornography is a venial sin and "not that bad".

This also applies if you have to say again and again that the

of an act is not the act itself: whoever publishes a photo of a murder is not considered a murderer and punished.

And whoever possesses the pornographic image of a rape is not a rape perpetrator and, in order to be punishable, does not have to want to commit such an act or approve of it.

Just as an example: Anyone who looks at or shares photos of wartime atrocities "on" any internet service has a certain probability (also) of committing acts under Section 131 of the Criminal Code (dissemination of depictions of inhuman violence).

Nevertheless, he will not think that he should be punished in the same way as the perpetrators of these crimes.

Therefore one must (also) always try to distinguish between being repulsed and disgust on the one hand and rational consideration of the wrong content on the other.

It is not useful for this, for example, that there is now a whole genre of reportage about the “traumatisation of the investigators”.

Police officers need not be publicly portrayed and pitied as victims of their own investigative activities;

there are (correctly) other structures for that.

The suffering of the bereaved is not better understood or made easier to bear by publishing reports on the everyday life of corpse washers or gravediggers.

do something

On July 1, 2021, the "Act to Combat Sexualized Violence Against Children" came into force.

It has completely revised the relevant provisions of the StGB, brought numerous additions and massive increases in the range of penalties, combined with procedural consequences that are linked to them, especially in the area of ​​investigative powers.

I repeatedly and seriously recommend taking the time to read up on these regulations on the BMJ's homepage under »laws on the internet«.

Some of them are formulated in a (very) complicated way and always pile up new details, because everyone wants to cover as much as possible and also regulate every special case.

Anyone who is supposed to think of "gaps" has to make quite an effort!

It seems all the more strange and irresponsible when, in view of the “special evaluation”, which was of course not carried out by chance but ordered by the ministry for a given reason, there are now general calls for “tough” measures and “finally something to be done!”.

For whatever reason, the vast majority of people in Germany have not the slightest idea what is punishable, and hardly anyone takes notice of the tightening of the law every six months: It is enough if three days of outrage professionals announce and demonstrate will, but now it will be difficult to take action again.

The tightening of the law (sometimes already overtaking itself) leads to countless application difficulties, complicated comparisons of retroactive effects and lengthy problems of interpretation, which are then fought with new, populist demands for "consistency" by those who had just decided on them as a solution to the problems .

more on the subject

• Controversial “chat control”: Are you now going to censor Ylva, Commissioner? By Max Hoppenstedt and Marcel Rosenbach

• EU plan to fight child abuse: messenger surveillance is likely to fail because of Germany

The publication of the special evaluation was related to the EU's proposal to allow the police authorities comprehensive access to private chat rooms without cause, i.e. a practically unlimited dragnet and dragnet search on the Internet.

Of course, the so-called network community (a nice term for an »elite« by the way) twitches strongly and justifiably, because this isn't China and you can exaggerate everything.

That's exactly right, but the counter-arguments are as simple as they are proven: "Whoever has nothing to hide..." is one thing, and "monster" crime reporting is another.

Unfortunately, your chances of success are not as bad as some had hoped;

This is already shown by the serious-faced discussion (in the form of permanent repetition) involving the management levels.

If you want to shift fundamental limits of state powers in Germany, you have to get through little kittens or child protection;

Money laundering and mafia are only alternatives.

But that doesn't mean that something really changes, where allegedly the constant "fighting" can no longer tolerate any further delay.

These are communication loops that are directly but intricately connected to real life and human suffering, but never (!) actually capture them.

epilogue

References like this are often answered with cannonades about the alleged "playing down" and so on.

This is inappropriate and benefits neither the criminal prosecution nor the victims.

Anyone who throws 40 million miracle-working automobiles on the streets must reckon with the fact that deaths and injuries cannot be prevented, even if the red light violation is punishable by a 15-year prison sentence.

Analogous: Anyone who operates an Internet and does not want to be made an object of total state control without rights must expect that there will be fraud, pornography, threats, hate speech and dirt on the Internet.

It is clear in principle that criminal offenses should be prosecuted, but it is worth discussing in detail.

Because the salvation obviously does not lie in demanding more and more persecution.