Particularly with increasing digitalization, new criminally relevant behaviors have emerged in sexual criminal law. Consequently, criminal investigations are increasingly initiated for “Upskirting“, “Stealthing“, “Revenge Porn“, or “Sextortion“.
But what lies behind these English terms that have found their way into German jurisprudence?
Upskirting refers to behavior in which a camera or smartphone is held under a person’s skirt – without authorization and usually secretly – to take a photo or video. The recordings are regularly made publicly accessible on the internet afterwards.
Until about three years ago, there was no separate provision in the Criminal Code for upskirting (also known as “downblousing” in the case of photographing a woman’s cleavage). The only option was to initiate criminal proceedings for insult under Section 185 of the German Criminal Code (StGB) or Section 201a StGB and additionally pursue civil action against the perpetrator(s).
Given the steady growth of pornographic internet platforms that provide such recordings and the fact that these acts are considered particularly reprehensible due to the violation of sexual self-determination, the legislator decided to include upskirting/downblousing as a separate sexual offense in the German Criminal Code, thereby explicitly making it punishable.
Since January 1, 2021, Section 184k StGB, which punishes the “violation of the intimate sphere through image recordings” with imprisonment of up to two years or a fine, has therefore been in effect.
So-called Stealthing occurs – according to the definition of the Federal Court of Justice – in the case of “sexual intercourse performed secretly without a condom against the recognizable will of the sexual partner“.
While such behavior does not require the use of the internet or digital media, it has only been discussed since 2017. The criminal classification of this behavior was controversial until the end of 2022.
When the Federal Court of Justice (BGH) first had to deal with a case of stealthing, the responsible judges concluded that every specific sexual act must be examined for the presence of consent (BGH decision of December 13, 2022 – 3 StR 372/22). While minor deviations should not lead to criminal liability, the BGH held that stealthing could, depending on the individual case, constitute rape under Section 177 (1) StGB be present.
If a person consents to sexual acts using a condom, this consent cannot be extended to intercourse without a condom. The BGH primarily drew this conclusion from the fact that stealthing, due to the lack of condom use, entails an increased probability of transmitting sexually transmitted diseases, and it also based its decision on the statutory condom obligation enshrined in Section 32 (1) of the Prostitution Protection Act (ProstSchG).
“Sextortion” can essentially be described as sexual blackmail on the internet. There are two different approaches taken by perpetrators.
Firstly, there are cases in which perpetrators initially make contact with future victims online – often via social media. After some time, these victims are prompted to engage in sexual acts in a joint video chat and are then blackmailed with the publication of corresponding recordings.
Secondly, victims receive emails in which perpetrators claim to already be in possession of compromising video recordings. It is often claimed that the victim’s smartphone or computer has been hacked. To appear credible, private data of the victims is often taken from the darknet and presented to them as “proof.”
As a rule, victims are then asked to transfer sums of money in cryptocurrency to specific digital wallets to prevent the threatened publication of videos.
In most cases of such behavior, the perpetrators will have committed (at least attempted) extortion under Section 253 (1), (2) StGB In addition, depending on the specific circumstances, a violation of the highly personal sphere and personal rights through image recordings (Section 201a StGB) as well as various sexual offenses through the dissemination, acquisition, and possession of pornographic writings (Sections 184, 184b, 184c StGB) or through the violation of the intimate sphere through image recordings (Section 184k StGB) may be present.
In the case of so-called Revenge Porn, ex-partners publish image or video recordings with sexual content featuring the victims. The respective recordings were made during the relationship with mutual consent and were not intended for public viewing.
As the name suggests, perpetrators hope to exact some form of revenge through this behavior by humiliating and shaming the victims through the publication of the recordings. This criminally punishable behavior is to be distinguished from so-called “Deepfake Porn,” where artificial intelligence is used to replace the victim’s face with another face on any pornographic recording.
The publication of such videos may, in individual cases, be punishable under Section 201a (1) No. 5 StGB in the form of unauthorized making accessible of legitimately produced image recordings. Perpetrators face imprisonment of up to two years.
Given that a separate sexual offense was created for upskirting, it seems at least possible that the legislator will also provide assistance in the case of revenge porn.
Should you have further questions or be accused in criminal proceedings, please feel free to contact us.