Sexual harassment in the context of German criminal law is primarily governed by Section 184i of the German Criminal Code (StGB). This provision addresses sexual acts that infringe on a person’s sexual autonomy but fall below the threshold of Section 177 StGB, which deals with sexual assault, sexual coercion, and rape. The intention behind introducing Section 184i was to penalize actions that are clearly sexual in nature but do not rise to the level of a serious offense like assault or coercion.
Legal Framework of Section 184i StGB
According to Section 184i(1) StGB, a person is guilty of sexual harassment if they “physically touch another person in a sexually determined manner and thereby harass them.” This comprises two main elements:
- Physical contact: There must be physical contact between the offender and the victim. This contact does not have to be limited to the primary sexual organs; touching other parts of the body, such as arms, legs, or the back, may fall under this provision if the circumstances suggest that the touch has a sexual character.
- Sexually determined manner: The contact must objectively have a sexual context. This is not only based on the perpetrator’s motivation but also on the external appearance of the act and how it would be perceived by an objective third party. A touch is considered “sexually determined” if it can generally be understood as sexual in nature.
OLG Hamm Decision (4 RVs 1/19)
In the decision by the Higher Regional Court (OLG) of Hamm on January 31, 2019, the defendant was convicted of sexual harassment in conjunction with defamation. However, the court critically reviewed whether sexual harassment under Section 184i StGB had occurred and partially overturned the conviction. The court clarified important principles that differentiate between punishable sexual harassment and merely inappropriate or intrusive actions.
In this case, the defendant was accused of touching a woman’s knee while on a train. The Detmold Regional Court initially ruled that this act constituted a “sexually determined” touch, as the defendant had previously physically approached the woman and referred to her as his “wife.” However, the OLG Hamm overturned this decision, arguing that the findings regarding the sexual nature of the touch were insufficient.
Key Criteria for Determining Sexual Harassment
- Sexual nature of the act: It is not enough for the victim to feel harassed. There must also be an objectively sexual component to the act. The OLG emphasized that it is not only the perpetrator’s subjective view that matters; the act must have a sexual connotation for a neutral observer. Simply touching a clothed knee does not automatically meet this criterion, as such an action can be ambiguous. The court noted that while the touch was unwelcome and intrusive, it was not necessarily “sexually determined”.
- Intensity and context of the act: The touch must have a certain degree of intensity or intimacy to be considered sexual harassment. The legislature envisioned acts such as touching the genitals or kissing the neck, whereas simpler touches to less intimate body parts may not always fulfill the statutory requirements. The OLG highlighted that the degree of intimacy may also be influenced by factors such as clothing or the circumstances surrounding the act. A touch through thick clothing, for example, is less intimate than one on bare skin or through thin fabric.
- Distinction from mere inappropriate behavior: Not every unpleasant or intrusive touch qualifies as sexual harassment. The law does not intend to penalize mere breaches of personal boundaries or inappropriate behavior. The OLG underscored that actions lacking a sufficiently sexual character do not fall under Section 184i StGB. In this case, the court noted that the defendant’s touch of the knee could have been interpreted as an expression of patriarchal power or a possessive attitude, but that alone did not amount to sexual harassment.
Severity and Victim’s Perception
Another important aspect is that the victim must feel harassed by the touch in question for the offense to be complete. However, the victim’s subjective perception alone is not sufficient to establish that the act was “sexually determined.” An objective assessment of the act must also take place.
In this case, the victim clearly felt harassed, but the court made it clear that this was only one of several factors required for criminal liability. The mere fact that the victim found the touch disturbing does not automatically mean it was an act of sexual harassment.
As I mainly work as a German criminal defense lawyer, I am familiar with both scenarios: Both consciously and unconsciously lying alleged crime victims – as well as perpetrators who try to deny or ignore any wrongdoing. One cliché needs to be dispelled: The vast majority of offenses involve women as victims, but I also know men as victims – and the shame associated with revealing oneself as a man here. Criminal law is only one “playing field” – employment law is particularly frequently affected.
Sexual Harassment in the Workplace and Potential Employment Law Consequences in Germany
Sexual harassment in the workplace is not only a severe violation of personal rights but also carries significant employment law consequences for the perpetrator. The legal rulings in Germany make it clear that sexual harassment is not tolerated and, in many cases, leads to disciplinary measures, including summary dismissal. However, the circumstances of each case, the severity of the allegations, and the employee’s past work record all play a role in determining the outcome.
Below is an overview of the risks employees face when accused of sexual harassment and potential defense strategies, based on several court rulings.
Definition and Legal Framework
Sexual harassment in the workplace is regulated by the General Equal Treatment Act (AGG) in Germany. Under Section 3(4) AGG, sexual harassment occurs when unwanted, sexually determined behavior violates the dignity of the affected person. This includes physical advances, verbal remarks, and non-verbal actions.
Relevant Employment Law Decisions
a. Verbal Sexual Harassment and the Limits of Dismissal
In a case decided by the Hamm Regional Labor Court (15 Sa 1669/15), the court reviewed the summary dismissal of a regional manager for verbal sexual harassment. The plaintiff had made ambiguous sexual comments to a female colleague. While the court acknowledged that the remarks were inappropriate, it held that the employer should have issued a warning before considering dismissal. The court emphasized the importance of proportionality in such cases, stating that immediate dismissal without prior warning is only justified in severe situations.
This ruling demonstrates that not every verbal misstep automatically warrants dismissal. Long-standing, previously unblemished employment records can lead to a warning being seen as a more appropriate response than immediate termination.
Physical Sexual Harassment and the Burden of Proof
In another case from the Cologne Regional Labor Court (7 Sa 508/04), the plaintiff was accused of sexually harassing a female colleague by giving her a “pat” on the buttocks. The plaintiff denied the allegation and demanded that the accusations be retracted. The court ruled that the claim of sexual harassment could only be retracted if it was proven that the accusation was false. In this case, the claim for retraction was denied due to insufficient evidence. However, the court upheld the plaintiff’s claim to prohibit the future repetition of the accusation unless proven.
This case highlights the difficulties that arise in situations where allegations of sexual harassment are made, but the evidence is unclear. Employees have a defense potential in such cases by emphasizing the lack of conclusive proof, showing that the risk of termination or other legal consequences exists when the accusation cannot be definitively disproven.
c. Serious Verbal Sexual Harassment and Dismissal
In a case before the Düsseldorf Labor Court (7 Ca 1837/08), the plaintiff was dismissed after repeated verbal sexual harassment of colleagues. The plaintiff made various inappropriate remarks, which he defended as jokes. The court acknowledged that the verbal remarks could justify summary dismissal but, again, emphasized the principle of proportionality. Since the employment relationship had existed for many years without prior complaints, a warning should have been considered as a milder measure before opting for dismissal.
Defense Strategies for Employees
Accused employees have several defense options, which can be drawn from these court decisions:
- Proportionality: One of the strongest defense arguments is based on the principle of proportionality. In cases where the misconduct is a one-off or less severe, it is often possible to argue that a warning would have sufficed. This is especially true if the employee can show a long, complaint-free work history.
- Burden of Proof: In many cases, allegations of sexual harassment may rest on weak evidence. Employees can argue that the accusations are not sufficiently proven, as in the Cologne Regional Labor Court case. An unclear burden of proof can make it difficult for the employer to legally justify the claim of harassment.
- Intent and Context: The intent behind the behavior and the context in which it occurred are also critical. If the remarks were intended as jokes and did not involve any solicitation of sexual acts, this can be viewed as a mitigating factor. This was evident in the Düsseldorf Labor Court and Hamm Regional Labor Court cases, where the courts made it clear that not every inappropriate comment justifies summary dismissal.
Risks for Employees
The risks for employees accused of sexual harassment are significant. In addition to the possibility of summary dismissal, they may face claims for damages or other employment law consequences. Even when the evidence is unclear, the employer may pursue ordinary dismissal or other disciplinary actions. Therefore, it is crucial for employees to seek legal advice early to defend against such accusations and minimize potential consequences.
Sexual harassment in germany: Conclusion
The decision by the OLG Hamm highlights the complexities in legally evaluating sexual harassment. A careful assessment of the circumstances is necessary to determine whether a touch was indeed “sexually determined.” Both the intent of the perpetrator and the objective circumstances surrounding the act play a role. Not every unwelcome touch is criminal; the degree of intimacy and the specific circumstances of the act are crucial in determining whether a violation of Section 184i StGB has occurred.
Defense in this area, whether criminal law or employment law, depends on communication even more than in other legal areas: both within the client, where you have to say clearly what is possible and what is not; but also in court, where standard defenses end in disaster. Your lawyer should therefore know exactly what he is doing, sexual criminal law is not like everything else – neither in criminal proceedings nor in employment proceedings!
German lawyer Jens Ferner
Translated with DeepL.com (free version)
The case law on sexual harassment in the workplace shows a clear stance: Sexual harassment is not tolerated, and employers are required to take appropriate measures to protect the victims. However, when imposing sanctions such as dismissal, the principle of proportionality must always be observed. Employees facing such accusations can defend themselves by arguing proportionality, highlighting the burden of proof, and examining the context of the incident.
Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
- Protecting Business Secrets in Germany: Legal Risks When Employees Forward Emails to Private Accounts - 6. October 2024
- Law Enforcement’s Access to the TOR Network: Investigative Techniques and Legal Implications - 5. October 2024
- The Challenge of Investigating and Defending Against Cryptomessenger Cases in Germany and Europe - 5. October 2024