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.