The term “catcalling” (used in English to describe calling a cat) is a colloquial term that encompasses any sexually connoted, verbally communicated harassment without physical contact—from sexually suggestive calls and whistling to sexist remarks in public.
But to what extent is catcalling punishable, and what changes can be expected in the future?
Sexual offenses, such as sexual assault pursuant to Section 177 of the Criminal Code (StGB) or sexual harassment pursuant to Section 184j StGB, require physical contact with the victim and therefore do not cover purely verbal harassment.
For catcalling to fall under the criminal offense of insult pursuant to Section 185 StGB, it is not sufficient that the perpetrator unwantedly confronts the victim with his sexual motivation.
An attack on the honor of the confronted person only exists if the perpetrator, through his statement, expresses that the person concerned exhibits a deficiency that diminishes their honor (BGH 2 StR 415/17 para. 14).
Insult pursuant to Section 185 StGB does not constitute a catch-all provision for sexual criminal law and instead only covers attacks on the legal interest of honor. Catcalling can therefore certainly fall under the provision of Section 185 StGB, but not in every conceivable case.
For cases in which the perpetrator makes unwanted sexual statements toward the victim without expressing a deficiency that diminishes their honor, there is currently no criminal liability. Consequently, a gap in criminal liability can indeed be identified for such cases.
There are repeated initiatives to criminalize catcalling, as is already the case in France. In 2020, a petition for this received 70,000 signatures. Most recently, the SPD parliamentary group called for the creation of a criminal offense for non-physical sexual harassment in a position paper.
The reason for this is that even substantial sexual harassment often cannot be sanctioned under existing legislation.
In the case of an 11-year-old girl who was told by a 65-year-old man on a public street that he wanted to accompany her “because he wanted to touch her pussy,” according to a decision by the Federal Court of Justice (BGH), there was no corresponding degradation of honor (BGH 2 StR 415/17, para. 14).
It is precisely because of such decisions that Justice Minister Kathrin Wahlmann (SPD) sees a legislative gap that must be closed. Verbal harassment must also, according to Wahlmann, be punishable above a certain threshold of significance. This is particularly because every sexual harassment is designed to degrade the harassed person to a mere sexual object, and especially in the case of children and adolescents, there is a risk that this could hinder their personality development.
However, there are various challenges in creating such a criminal offense. Such an offense would have to satisfy the principle of legal certainty enshrined in Article 20(3) of the Basic Law (GG) and contain a threshold of significance in order to comply with the “ultima ratio” principle of criminal law.
It is not the task of criminal law to embody societal moral concepts, but rather to sanction those behaviors that are particularly harmful and intolerable for coexistence in society (BVerfG 96, 245 (249)).
With regard to catcalling, the definiteness of the provision and the determination of the threshold of significance pose a particular challenge, especially due to different perceptions and evaluations of statements.
In summary, it can be stated that not every form of catcalling is currently punishable.
There are considerable obstacles to creating a separate criminal offense.
Should you have further questions or be accused in criminal proceedings, please contact us.
Update October 31, 2024
Learn more about this in the new podcast episode with Deutschlandfunk Nova. Our specialist attorney for criminal law Dr. Anthea Pitschel reports here on the legal situation in Germany regarding catcalling.