Domestic and family violence against women is addressed under various sections of Germany’s Criminal Code: section 174 (Abuse of Position of trust), section 177 (Sexual Assault by use of Force or threats; rape), section 179 (Abuse of Persons Who Are Incapable of resistance), section 221 (Abandonment), section 222 (negligent Manslaughter), section 226 (Causing Grievous Bodily Harm), section 238 (Stalking), section 239 (unlawful Imprisonment), among others.
[14] In addition to the criminal law, victims benefit from the “Act to Improve Civil Jurisdictional Protection against Violent Acts” (Protection against Violence Act). The Act provides for protection orders concerning the prohibition of contact, harassment and attempts to approach the victim on the grounds of physical violence, threats and stalking by a former spouse or partner, acquaintances or strangers. It also stipulates that the victimised party is entitled to retain the home in case of violence.
[15] However, the law is not entirely comprehensive, as the victim must request these civil protections, and NGOs have noted that the fines for breach are too insubstantial to function as an effective deterrent.
[16] Moreover, the law does not explicitly cover psychological, economic or emotional abuse.
[17]It is also reported that the effectiveness of the law is hampered by a lack of trust in judicial processes, ambivalence and fear of further violence, as well as lack of knowledge about existing rights and support systems.
[18]
Implementation of the Protection Against Violence Act, as well as nation-wide policies aimed at combatting domestic violence, is supported by a National Programme of Action to Combat Violence against Women.
[19] In addition, the government reports that it has established a shelter system in many parts of the country (approximately 353 women’s shelters were operational in 2013
[20]), and conducts sensitivity training for medical professionals.
[21] In practice however, NGOs have expressed concern these shelters lack sustained funding and are often threatened with cuts or closure.
[22]There are also reports that there is not enough shelter space for women with disabilities – only 10% of women’s shelters are barrier free.
[23]Domestic violence continues to be a challenge for German society. Results from a recent survey by the European Union Agency for Fundamental Rights indicated that the prevalence of physical partner violence in Germany was of 22%. Risk factors included separation, or intended separation, as well as the experience of violence as a child or adolescent; although education, income and class had no significant influence on the tendency to commit acts of violence.
[24] According to one social survey, attitudes towards domestic violence in Germany are improving: with 20% of Germans surveyed laiming that domestic violence is justified at least under some circumstances.
[25]Again, prevalence data demonstrates that vulnerability to domestic violence increases in migrant communities. 25% of woman of migrant background interviewed in the 2004 study had experienced domestic abuse, increasing to 38% amongst Turkish-background women.
[26]Section 178 of the German Criminal Code criminalizes sexual violence and
rape, including spousal rape, punishable by one to fifteen years of imprisonment. If the offender causes the death of the victim at least by gross negligence the penalty shall be imprisonment for life or not less than ten years (Section 178).
[27]The Act to Reform the Protection of Victims’ Rights also gives victims greater rights in criminal proceedings, including the right testify via video link, a service designed especially for vulnerable victims of sexually motivated crimes.
[28]There are 183 rape crisis centers throughout the country; although NGOs have reported that the government funding for the support system is not sufficient, and that access to protection, counseling and support is difficult for marginalized victims of sexual violence, such as migrant women, women with disabilities or women living in rural areas.
[29]Nevertheless, violence against women, including sexual violence, remains a problem in Germany. According to national police criminal statistics, 8,031 cases of rape or serious sexual abuse occurred in 2012.
[30] Yet, despite these figures, the percentage of cases reported to the police is estimated to be only 8%.
[31]Women’s groups have reported that there remains a significant gap between the law and how it is practiced, and that proceedings are often dismissed for lack of evidence, a fact that is not always captured in national statistics.
[32] The most recent government survey data from 2004 indicates that 40% of women interviewed had experienced physical and/or sexual violence since the age of 16, while 13% had experienced sexual violence alone. Partners, former partners and lovers were most common perpetrators (49%), followed by casual acquaintances (22.%), friends, acquaintances and neighbors (19.8%), unknown persons (14.5%), acquaintances from work, training or school (11.8%), family members (10.1%) and also professional caregivers, assistants, others (3.8%).
[33]Although Germany has ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (‘Istanbul Convention’) and article 36 of the convention states that any non-consentual sexual acts must be criminalised, NGOs have criticised that article 177 of the German penal code does not meet this requirement. To be punishable as a rapist, the offender must coerce another person “by force” or “by threat of imminent danger to life or limb” or “by exploiting a situation in which the victim is unprotected and at the mercy of the offender.”
Vulnerability to violence and sexual assault increases for especially marginalized women. The same 2004 study found that women from Eastern Europe experienced sexual and physical violence at a rate of 44%, while almost half (49%) of Turkish migrant had been victims of such crimes. In particular, Eastern European women reported significantly higher rates of sexual violence (17%, as compared with 13% of women generally).
[34]In addition, a government-supported survey conducted between 2008 and 2011 found that disabled women experienced psychological, physical and sexual violence two-to-three times more frequently than women in the average population; with sexual violence in adult life reported by 21 to 43% of disabled women.
[35]Moreover, the survey found that women in care and dependency relationships with the perpetrator and women experiencing violence in residential institutions by other residents rarely make use of the Violence Prevention Act.
[36]Sexual harassment also remains a problem in German workplaces, despite being outlawed under the sections 3(3) and (4) of the General Equal Treatment Act covering education and the access to and supply of goods and services, and sections 3(3) and (4) of the Law on Equal Treatment of Soldiers Act. Under section 12(1) and (2) of the General Equal Treatment Act, employers must take preventive measures against harassment and sexual harassment such as the provision of information about the topic, offering appropriate training courses, or the adoption of codes of conduct. However, in practice the problem remains widespread
[37], and NGOS report that many sexual harassment cases fail due to lack of evidence necessary to discharge the burden of proof, because harassment mostly takes place without witnesses.
[38]According to the European Commission there is still strong resistance to dealing with the problem of sexual harassment and case law is described as ‘hostile’.
[39] According to the 2004 study of violence against women in Germany, various forms of sexual harassment have been experienced by 58 percent of the women interviewed; 42 percent of which took place in working life, vocational training or education.
[40]
There is some anecdotal evidence that
female genital mutilation (FGM) is practised in Germany, although official figures are not available.
[41]In Germany, FGM cases can be criminally prosecuted through the sections 224, 225 and 226 Criminal Code as grievous bodily injury having as consequence the loss of essential parts of the body or infertility. The principle of extraterritoriality is applicable, making FGM punishable even if it is committed outside the country.
[42] In 2011, an amendment to the Penal Code was proposed with the aim to include a specific criminal law provision on FGM. However, it has not yet entered into force.
[43] A study on the prevalence of FGM in Germany carried out in 2007 by the civil society organisation ‘Terre DesFemmes’, estimated the number of women victims of FGM at 19,000 and the number of girls at risk at 4,000, with the total female population in Germany originating from countries where FGM is performed being at least 66,302 in 2011.
[44]Regarding women’s reproductive autonomy, family planning and reproductive health services are provided and covered by the insurance schemes to a large extent. Up-to-date figures on the percent of women who used some for of modern contraceptive are not available.
More
So-called
“honor killings” also reportedly occur in Germany. A study published in 2011 by the Federal Criminal Statistics Office placed the number of honor crimes – defined as “as intentionally committed or attempted homicides that are carried out predominantly by males against females in the context of patriarchal families or societies in order to restore, from the perspective of the perpetrator, their family’s honour” – at approximately 12 annually between 1996 and 2005.
[45]Germany has been identified as a destination country for women subjected to
forced prostitution and forced labor.
[46] In 2009 the CEDAW Committee noted that, while there has been a decrease in the number of people reported as victims of trafficking for sexual exploitation, the number of women subject to trafficking for labour exploitation in Germany had grown.
[47] In order to combat the practice, Germany has comprehensively criminalized all trafficking-related activity. These efforts fully comply with the minimum international standards for action according to the U.S. Department of State’s Trafficking in Persons Report.
[48]The law differentiates between trafficking in human beings for the purpose of sexual exploitation (the new section 232 of the Criminal Code) and trafficking in human beings for the purpose of exploiting their labour (the new section 233 of the Criminal Code.).
[49]The Act Reforming the Protection of Victims’ Rights, which came into force in September 2004, the legal stipulations for protecting victims under procedural law were improved, including the provision of legal representation free of charge, regardless of their financial situations. Section 25(4) of the Residence Act foresees the possibility of granting a temporary residence permit to victim-witnesses when their presence is required for the duration of criminal proceedings or for psychosocial treatment. With the implementation of the Victim Protection Directive, victims of offences related to trafficking in human beings are also granted temporary residence permits regardless of whether their presence on German territory was legal, temporarily tolerated or illegal up to that point.
[50]Section 218 of the Criminal Code make
abortion a crime, with up to three years in prison or a fine, or, where the perpetrator acts without the consent of the pregnant woman, a maximum of five years in prison. However, exceptions are made for abortions performed within the first trimester upon condition of mandatory counseling, and later in pregnancy in cases where pregnancy endangers the woman’s life or severely compromises her physical or mental health and no other solution can be found. In both cases a waiting period of 3 days is required.
[51] [14] Criminal Code in the version promulgated on 13 November 1998, Federal Law Gazette [Bundesgesetzblatt] I p. 3322, last amended by Article 3 of the Law of 2 October 2009, Federal Law Gazette [15] CEDAW (2009), p.20 [16] Group of the Alliance of German Women’s Organizations (2008), p.39 [17] Act on Protection against Violence (Gewaltschutzgesetz – GewSchG) (Article 1 of the Act to Improve Civil Law Protection against Violent Acts and Stalking as well as to Facilitate Relinquishment of the Marital Home in the Event of Separation of 11 December 2001 (Federal Law Gazette, Part I, p. 3513), section 1 [18] Group of the Alliance of German Women’s Organizations (2008),p.39 [19] CEDAW 2009, p.11 [20] WAVE (2013), p.96 [21] CEDAW (2012), p.23 [22] Group of the Alliance of German Women’s Organizations (2008), p.38 [23] WAVE (2013), p. 96 [24] Federal (2004b), p.9 [25] European Commission (2010), p.48 [26] Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (2004b), p.28 [27] WAVE (2013), p.97: Criminal Code in the version promulgated on 13 November 1998, Federal Law Gazette [Bundesgesetzblatt] I p. 3322, last amended by Article 3 of the Law of 2 October 2009, Federal Law Gazette, section 177 [28] CEDAW (2009), p.24[29] WAVE (2013), p.98 [30] Federal Criminal Police (2012) [31] European Women’s Lobby (2013), p.34 [32] Group of the Alliance of German Women’s Organizations (2008), p.42 [33] Federal Ministry for Family Affairs, Senior Citizens, Women and youth (2004), p.14 [34] Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (2004b), p.27 [35] University of Gießen (2013), p.6 [36] University of Gießen (2013), p.13 [37] US State Department (2013) [38] European Commission (2011), p.111 [39] European Commission (2011), p.111 [40] Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (2007), Chapter 4 [41] CEDAW (2009), p.10 [42] European Institute for Gender Equality (2012) [43] European Institute for Gender Equality (2012) [44] European Institute for Gender Equality (2012) [45] Max Planck Institute for Foreign and International Criminal Law (2011), p.4 [46] US State Department (2013) [47] CEDAW (2009), p.11 [48] US State Department (2013), p.78 [49] CEDAW (2009), p.86 [50] CEDAW (2009), p.29 [51] UN (2013)
