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Is groping punishable in Germany? Assuming that no force is used, and all people involved are adults.

Hypothetical case: Bob enters a bus and sits down next to Chuck. Both are adults, and they don’t know each other. Suddenly Chuck makes Bob a compliment and gropes Bob’s crotch. This inflicts no physical pain on Bob, and Chuck is in no way holding Bob down.

What I found out so far, as a layman (please correct me!):

  • § 174 StGB (and § 174a, § 174b, § 174c), § 176 StGB (and § 176a, § 176b), § 179 StGB and § 182 StGB define sexual abuse.

    Bob is 18+ years old, and there does not exist any kind of power gap, so I think § 174/176/179/182 do not apply.

  • § 177 StGB and § 178 StGB define sexual assault (Sexuelle Nötigung) and rape (Vergewaltigung). § 177 (1) makes clear that it has to involve force/violence (Gewalt), a threat (Drohung), or exploiting of a defenseless position (Ausnutzung einer Lage …).

    Chuck is not using violence, nor is he threatening, nor is Bob defenseless, so I think § 177/178 do not apply.

  • Most of the other paragraphs from the 13. section seem to be about prostitution, pornography, and exhibitionism; these obviously don’t apply.

  • I read that sometimes § 185 StGB (insult) can be relevant, but this would require the intent to insult (e.g., making snide remarks while groping), so this does not seem to apply in the hypothetical case (Chuck even compliments Bob!).

  • § 223 (bodily harm) does not seem to apply (the groping doesn’t even hurt).

Bonus question: Would anything change if Bob says to Chuck that he should stop it, but Chuck does it again?

  • 1
    In Canada, even the very act of saying of making a threat of sexual violence is a threat of force. That fact that there was sexual contact is a use of force, unless consent could be proven. I don't understand the links (since I don't know german), but are there any relevant sections that pertain to consent in a sexual act? Those might help make this more clear for you. – Zizouz212 Jan 23 '16 at 2:21
  • Certainly in Australia this would be indecent assault. Common law assault involves the apprehension of violence, not the actuality - sexual assault is similar. – Dale M Jan 23 '16 at 12:37
  • In most states in the United States sexual assault and rape statues have generally removed the forcible element from those laws. Basically the prosecutor has to show a lack of consent, force is irrelevant. I do not know German law. – Viktor Jan 23 '16 at 23:55
  • @ElChapo: Not sure what exactly you mean … isn’t my motivation obvious? I want to know if it’s illegal in Germany. According to everything I found about this (see my answer, for example), it doesn’t seem to be illegal, but maybe there’s something I’m missing. – unor Jan 24 '16 at 5:27
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    Other essential points here that depend on the exact situation are whether the groping is to be considered a sexuelle Handlung (as defined in § 184h) and whether Chuck is restricted in his ability to leave (narrow row, Chuck on a window and Bob on an aisle seat?), which might constitute Gewalt; see de.wikipedia.org/wiki/Sitzblockade#Juristische_Bewertung for the somewhat similar question whether a sit-in can be considered Gewalt. – chirlu Jan 24 '16 at 11:24
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§177 "Sexueller Übergriff; sexuelle Nötigung; Vergewaltigung" was recently changed. It now includes:

(2) 3. der Täter ein Überraschungsmoment ausnutzt,

this loosely translates to:
"[in case] the perpetrator exploits a moment of surprise"

Suddenly Chuck makes Bob a compliment and gropes Bob’s crotch.

From your example it's clear that Chuck did overcome any possible resistance by surprising Bob.

Bonus: This was also added in the same change

(2) 1. der Täter ausnutzt, dass die Person nicht in der Lage ist, einen entgegenstehenden Willen zu bilden oder zu äußern,

"[in case] the perpetrator exploits that the person is not able to make up or state their mind in an opposing way"

Hence you can't have consensual sex with someone who's intoxicated (e.g. drunk with 1.1‰), not even when you're drunk yourself. In the latter case two individuals would technically rape each other.

3

According to the Wikipedia article Sexual harassment, sexual harassment is not a statutory offence in Germany:

Sexual harassment is no statutory offence in Germany. In special cases it might be chargeable as "Insult" (with sexual context) as per § 185 Strafgesetzbuch but only if special circumstances show an insulting nature.

(The German Wikipedia article says essentially the same.)

For the statements about legitimate self-defence in these cases, both Wikipedia articles provide Die Straflosigkeit des »Busengrapschens« (PDF, German) as source, which is an article by Nina Adelmann from 2009, who was research associate at the University of Mannheim back then. The title could be translated to: The impunity of breast-groping.

In this article, she confirms that forceless/threatless groping (or kissing) is not a statutory offence, and that there aren’t any other laws that would apply in the general case. According to her article, self-defence is allowed in such cases regardless (but, roughly said, only while the groping/kissing is current).

  • Since you posted this answer, there have been changes to the law in question. You may want to edit your answer to reflect this. – Wrzlprmft Apr 10 '18 at 18:53
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Assault with bodily harm. The groping is bodily harm by itself. There's nothing that says that bodily harm has to hurt or that bodily harm has to cause some permanent damage.

If you claimed that "Bob is not defenceless", then you would clearly agree that there is a need for self defence. Breaking all fingers on the groping hand seems to be quite an appropriate degree of force in self defence.

To the bonus question: Since Chuck would have to use the other hand, he might end up with fingers in both hands broken.

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    How is bodily harm defined? Is just any unwanted contact (I don't think so, since then unexpectedly shaking someone's hand would count). – PyRulez Jan 24 '16 at 1:37
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    You're deviating from the original claims, making unsupported claims of your own. So do you have any sources? – Zizouz212 Jan 24 '16 at 2:05

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