Upskirting, stealthing, revenge porn and sextortion — the most important facts about the new sexual offences

Incre­asing digi­ta­li­sa­tion in parti­cular has led to the emer­gence of a number of new criminal offences in sexual criminal law. For example, criminal inves­ti­ga­tions are incre­asingly being conducted into “upskir­ting”, “stealt­hing”, “revenge porn” or “sextor­tion”.

But what is behind these English terms that have found their way into German case law?

Upskir­ting refers to beha­viour in which a camera or smart­phone is held under the skirt of the person concerned — usually secretly and without autho­ri­sa­tion — and a photo or film is taken. The recor­dings are then regu­larly made publicly available on the internet.

Until around three years ago, upskir­ting (also known as “down­blou­sing” in the case of photo­gra­phing a woman’s cleavage) was not yet covered by a sepa­rate provi­sion in the Criminal Code. There was only the possi­bi­lity of initia­ting criminal inves­ti­ga­tion procee­dings for offence under § 185 StGB or § 201a StGB and also taking civil action against the perpe­trator.

In view of the fact that porno­gra­phic internet plat­forms that make the rele­vant images available are growing steadily and the acts are considered parti­cu­larly repre­hen­sible due to the viola­tion of sexual self-deter­mi­na­tion, the legis­lator decided to include upskirting/downblousing as a sepa­rate sexual offence in the German Criminal Code and thus expli­citly crimi­na­lise it.

Since 1 January 2021, the provi­sion of Section 184k of the German Criminal Code has ther­e­fore existed, which punishes the “viola­tion of inti­mate areas through image recor­dings” with a prison sentence of up to two years or a fine.

Accor­ding to the defi­ni­tion of the Federal Court of Justice, so-called stealt­hing occurs in the case of “sexual inter­course carried out secretly without a condom against the reco­g­nisable will of the sexual partner”.

Although such beha­viour does not require the use of the internet or digital media, it has only been discussed since 2017. The criminal clas­si­fi­ca­tion of this beha­viour was contro­ver­sial until the end of 2022.

When the Federal Court of Justice had to deal with a case of stealt­hing for the first time, the respon­sible judges came to the conclu­sion that every specific sexual act must be examined for the exis­tence of consent (Federal Court of Justice decision of 13 December 2022 — 3 StR 372/22). While insi­gni­fi­cant devia­tions should not result in criminal liabi­lity, in the opinion of the Federal Court of Justice, stealt­hing may consti­tute rape in accordance with Section 177 (1) StGB, depen­ding on the indi­vi­dual case.

If a person cons­ents to sexual acts using a condom, this consent cannot be extended to inter­course without a condom. The Federal Court of Justice concluded this judge­ment prima­rily from the fact that there is an increased proba­bi­lity of the trans­mis­sion of sexu­ally trans­mitted dise­ases during stealt­hing due to the lack of use of a condom and based its decision on the legal obli­ga­tion to use a condom enshrined in Section 32 (1) Prost­SchG.

“Sextor­tion” can basi­cally be described as sexual black­mail on the internet. There are two diffe­rent approa­ches used by the perpe­tra­tors.

On the one hand, there are cases in which the perpe­tra­tors initi­ally contact the victims online — often via social media. After some time, they are asked to perform sexual acts in a shared video chat and then black­mailed with the publi­ca­tion of the corre­spon­ding recor­dings.

On the other hand, the victims receive emails in which the perpe­tra­tors claim to already be in posses­sion of compro­mi­sing film footage. It is often claimed that the victim’s smart­phone or computer has been hacked. In order to appear credible, the victim’s private data is often taken from the darknet and held up as “proof”.

As a rule, the victims are then asked to transfer money in cryp­to­cur­rency to certain digital wallets in order to prevent the threa­tened publi­ca­tion of videos.

In most cases of such beha­viour, the perpe­tra­tors will have made them­selves liable to prose­cu­tion for (at least attempted) extor­tion under Section 253 (1, 2) StGB. Depen­ding on the specific circum­s­tances, there may also be a viola­tion of the most personal sphere of life and personal rights through image recor­dings (Section 201a StGB) as well as various sexual offences through the distri­bu­tion, acqui­si­tion and posses­sion of porno­gra­phic writings (Sections 184, 184b, 184c StGB) or through the viola­tion of inti­mate areas through image recor­dings (Section 184k StGB).

In the case of so-called revenge porn, the ex-part­ners publish images or videos with sexual content in which the persons concerned can be seen. The respec­tive recor­dings were made during the rela­ti­onship with the mutual consent of both parties and were not intended for the public.

As the name suggests, the perpe­tra­tors hope to take some form of revenge through this beha­viour by humi­lia­ting and shaming the victims by publi­shing the images. A distinc­tion must be made between this criminal beha­viour and so-called “deepfake porn”, in which arti­fi­cial intel­li­gence is used to replace the face of the victim with another face in any porno­gra­phic recor­ding.

The publi­ca­tion of such videos can be punis­hable in indi­vi­dual cases in accordance with Section 201a (1) No. 5 of the German Criminal Code (StGB) in the form of unaut­ho­rised access to autho­rised image recor­dings. Offen­ders face a prison sentence of up to two years.

In view of the fact that a sepa­rate sexual offence has been created for upskir­ting, it seems at least possible that the legis­lator will also help in this respect in the case of revenge porn.

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