The criminal liability of “catcalling”

The term “catcal­ling” is a collo­quial term that covers any sexu­ally connoted, verbally commu­ni­cated harass­ment without physical contact — from sexu­ally sugges­tive shouts and whistles to sexist remarks in public.

But to what extent is catcal­ling a criminal offence and what changes can be expected in the future?

Sexual offences such as sexual assault under Section 177 StGB or sexual harass­ment under Section 184 j StGB require physical contact with the victim and ther­e­fore do not cover purely verbal harass­ment.

For catcal­ling to fall under the offence of insult under Section 185 StGB , it is not enough for the perpe­trator to confront the victim with their sexual moti­va­tion in an unwanted manner.

Rather, an attack on the honour of the person confronted only exists if the perpe­trator expresses through his/her state­ment that the person concerned has a defi­ci­ency that dimi­nishes his/her honour in this respect (BGH 2 StR 415/17 para. 14).

Insult under Section 185 StGB does not consti­tute a catch-all offence under sexual criminal law and instead only covers attacks on the legal inte­rest of honour. Catcal­ling can ther­e­fore defi­ni­tely fall under the stan­dard of Section 185 StGB, but not in every conceivable case.

There is curr­ently no criminal liabi­lity for cases in which the perpe­trator makes unwanted sexual comm­ents to the victim without expres­sing a lack of honour. Conse­quently, a gap in criminal liabi­lity can certainly be iden­ti­fied for such cases.

There are repeated initia­tives to crimi­na­lise catcal­ling, as is already the case in France. In 2020, a peti­tion in favour of this received 70,000 signa­tures. Most recently, the SPD parlia­men­tary group called for the crea­tion of a criminal offence for non-physical, sexual harass­ment in a posi­tion paper.

The reason for this is that even serious sexual harass­ment can often not be pena­lised under the exis­ting legal situa­tion.

In the case of an 11-year-old girl who was told by a 65-year-old man on the public street that he wanted to accom­pany her “because he wanted to touch her pussy”, for example, there was no corre­spon­ding dispa­ra­ge­ment of honour accor­ding to a decision by the Federal Court of Justice (BGH 2 StR 415/17, para. 14).

It is precisely because of such decis­ions that Justice Minister Kathrin Wahl­mann (SPD) sees a loophole in the law that needs to be closed. Accor­ding to Wahl­mann, verbal harass­ment must also be punis­hable above a certain mate­ria­lity thres­hold. This is parti­cu­larly because all sexual harass­ment is desi­gned to degrade the harassed person to a mere sexual object and there is a risk that children and young people in parti­cular could be hindered in their personal deve­lo­p­ment as a result.

However, there are various chal­lenges for the crea­tion of a corre­spon­ding criminal offence. Such an offence would have to satisfy the requi­re­ment of certainty enshrined in Art. 20 para. 3 of the Basic Law and contain a mate­ria­lity thres­hold in order to comply with the “ultima ratio” prin­ciple of criminal law.

It is not the task of criminal law to embody social moral concepts, but rather to sanc­tion beha­viour that is parti­cu­larly harmful and into­le­rable for coexis­tence in society (BVerfG 96, 245 (249)).

With regard to catcal­ling, the speci­fi­city of the norm and the deter­mi­na­tion of the mate­ria­lity thres­hold, in parti­cular due to diffe­rent percep­tions and evalua­tions of state­ments, pose a parti­cular chall­enge.

In summary, it can be stated that not every form of catcal­ling is curr­ently a criminal offence.

There are considerable hurdles with regard to the crea­tion of a sepa­rate criminal offence.

If you have any further ques­tions or are a defen­dant in criminal procee­dings, please do not hesi­tate to contact us.