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.