Why The New Year’s Attacks On Women In Germany Weren’t Even A Crime

Feminists and conservatives, liberals and racists all say they want nothing more than to protect women’s rights. But right now even German law doesn’t do that. BuzzFeed News’ Jina Moore reports from Cologne.

COLOGNE, Germany — It took time, too much time, for the truth to come out. When it did, people were, naturally, angry. Hundreds of women had been grabbed, kissed, and groped by crowds of men near Cologne Cathedral on New Year's Eve. Some of the women also had their cell phones or wallets stolen. Some of the women felt men push hands down their pants. Some of the women felt men shove fingers inside of them.

Similar reports would surface from Hamburg and Stuttgart, but it would be days before the police began to investigate the crimes. Eventually, the details would dominate conversations in Germany for weeks, for one reason: The perpetrators were “North African men,” the police said in January. By mid-February, prosecutors would determine that an "overwhelming" number of their suspects were asking the German government for refugee status.

Across Europe, the events of that night would catalyze a debate about refugees, crime and racism, at a time when tensions around an increasing refugee population were already a hot, politically divisive topic.

It was hardly the first or last time women have been assaulted during a big public holiday in Germany, but it is the first time, thanks to the obsessive discussion that followed the New Year’s attacks, that many Germans have learned about a shocking feature of the country’s sexual assault law: Most of what happened that night in Cologne is not actually a crime.

This is the irony women's activists are struggling with in the wake of attacks in Cologne. A quick squeeze of the breasts, a hand on the ass, an unwanted kiss — when it happens in a public space, none of these are against the law in Germany.

"The German law accepts that a man generally has the right to touch a woman, to have sexual intercourse with a woman. It's his right, unless the woman shows her resistance very, very strongly," said Chantal Louis, an editor at Emma, Germany's oldest feminist magazine. "We have a situation where … even touching the breasts or vagina can’t be punished in the logic of that law, because if the perpetrator does it very quickly, you don’t have time to resist. It seems weird and crazy, but that’s German law."

That's because, as far as the law is concerned, verbal consent isn't really the issue. The law focuses instead on the overwhelming force of the perpetrator, requiring that there be a "threat of imminent danger to life and limb." For a court to rule that a woman was raped, and the justice system to put a rapist behind bars, a woman must physically, exhaustively resist her perpetrator. If she can't prove with her body — with bruises or other injuries — that she fought back, the assault isn't really a crime.

One goal of the law, experts say, is to avoid "he said, she said" approaches to crimes, but the effect is to undermine the investigation or prosecution of many rape or sexual assault cases that rely on a type of force the law simply doesn't acknowledge.

"If you have some perpetrator who has in the past beaten you up, beaten you to a pulp, who has been continually beating you, degrading you, demeaning you — all the things that can be, psychologically, amazingly effective — who has taken control of your bank account, taken control of your life — and if you end up forced to have sex with this guy … that doesn't count as rape," said Nancy Gage-Lindner, a member of the German Women Lawyer's Association, or DJB.

"You have to be able to show that violence has been committed against you," Gage-Lindner said. "If you don't in the end have any physical harm to show for it — you haven't been ripped apart, you haven't gotten bruises," you're not getting a conviction, she said.

It's easier to prosecute a guy for stealing a woman's phone than for grabbing her breasts.

It's a legal interpretation confirmed repeatedly by the German courts, including the country's highest criminal court. In 2012, that court overturned the conviction of a man who a lower court said had raped his wife: He wanted anal sex; she said no; he did it anyway. She cried. She writhed in pain. But the appeals court didn't find that she sufficiently fought back. Why didn't she scream? (Her kids were in another room.) Why didn't she try to run away? (He'd beaten her before.)

Because she didn't fight, or scream, or try to physically escape her home, Germany's high court found that she didn't not want it enough. Or, as one male German defense lawyer put it to the newspaper Die Zeit, "A woman must carry her 'no' through. We [men] can hardly know, with a simple 'no,' whether she really means it."

There's one more irony about laws on sexual crimes in Germany that's important when it comes to Cologne: If the women had been attacked by colleagues in their office building, or behind the coffee counter where they make espresso, or in the café car on the train where they punch tickets all day — if the exact same groping had happened to a woman at work, it would be a crime.

"At work, we have a very different regulation, a clearer regulation. It's called 'sexual harassment at the workplace,' and every woman knows it. Every woman knows that, at work, it's not OK for someone to touch you, to try to kiss you, to lay a hand on your lower back," said Heike Lütgart, a criminologist and career police officer with decades of experience investigating gender-based violence in Bielefeld, a small German city about two hours from Cologne. "But on the street, you haven't got that. There's no law. That's a great problem for women, and women don't know it. They say, 'Wait, any man can just come and touch me and pet me and kiss me, and it's nothing?'"

Yes, in fact.

"There's no crime [there]. Nothing has happened from the law's perspective," Lütgart said.

Only 13% of rape cases result in convictions, according to BFF, a national association of women’s help groups based in Berlin, and experts think the law’s limitations are one reason conviction rates are so low. Lawyers, experts, and activists have been trying to fix this problem for years, with very little result. But just before Christmas, the justice ministry sent a proposal for changes to regional governments — the first real step toward a legislative change on this issue that Germany has seen. Chancellor Angela Merkel's office signed off on the proposal on March 16, but parliament has to approve it. Even these changes, the German Women's Lawyers Association says, were modest.

Still, the response to the New Year’s attacks was a push in the right direction, said Gage-Lindner, who as a member of the Criminal Law Commission of the association, has been advocating for changes to the law for years. "It was astonishing to Joe Blow out in the street to realize all this, and that has given us a huge push. That's the silver lining: It's given us another opportunity to discuss how or to help people at large understand how crazy our criminal code still is," she said.

But right now, it's still easier to prosecute a guy for stealing a woman's phone that night than for grabbing her breasts. For many of the women assaulted on New Year's Eve, "it simply might not come to a legal punishment," said Carola Klein, who works at a rape crisis center in Berlin called Lara. "There are very, very fine distinctions in the law … about what counts as a sexual assault and what doesn't quite meet that bar."

Or, as Alexandra Eul, an editor at Emma, put it: "Most of the women on the square that night might just get a big nothing."

Prosecuting what happened in Cologne is also difficult for reasons beyond Germany's arcane sexual assault laws. There's a deep confusion about what actually took place that night.

"Even I ask myself all the time, what was happening that night? For me, it never really became clear," said Gabi Zekina, the director of Frauenkreise, a Berlin feminist group. "What happened that night? And why did it happen? And why was it followed by such an outburst?" she said. "These are the questions that never leave me."

The fundamental problem is that the police didn't disclose the crimes in any detail until a full week after they had happened. On New Year's Day, the police released a statement saying the city had been calm. It acknowledged clearing the plaza between the main train station and the Dom — the Gothic-style cathedral that is one of Germany's best-known landmarks — but said the problem was a large crowd of around 1,000 people lighting fireworks willy-nilly and causing risk of a stampede. The celebrations had, overall, been "relaxed," the statement said.

That would turn out to be the kind of mischaracterization that, for some, became hard not to think of as a lie. The police retracted that original statement nearly a week later. The city police commissioner was fired. A 58-page report to state authorities acknowledged, "In the public there's come to be an impression of a cover up."

That's how it started to look to Eul, and when she came to work at Emma on the first Monday of 2016, she was beset by messages about New Year's. The police still weren't saying much, but social media was full of women recounting what had happened to them. The media picked up those accounts, and eventually, in press conferences and public statements that sprinkled out over a week, the police account — the official narrative — became much clearer, deeper, more detailed.

That included stressing repeatedly the foreignness of the perpetrators. Indeed, there was raucous public speculation that the police kept silent about the crimes because the alleged perpetrators were refugees. The motivations for an alleged "conspiracy of silence" varied: Maybe the apparent silence was because of political correctness. Maybe it was to protect Angela Merkel's government, which was already facing backlash for her "open-door" refugee policy, or not wanting to fan xenophobia. The conspiracies Cologne inspired had in common a suspicion that refugees were being accommodated at the expense of Germany’s women, which is ironic, given how poorly the country’s laws protected those same women.

The events “had been overcast by the perception that asylum-seekers were a part of these mobs,” said Gage-Lindner, of the DJB. “That's been a huge distraction. This sort of thing can happen at any old soccer game, and it won't get that attention.”

In February, the state prosecutor said his case included 467 complaints of sexual violence, including rape, and that the “overwhelming majority” of the 73 suspects are asylum-seekers — a legal designation for those seeking refugee status from the foreign ministry — and that most of them are from Morocco and Algeria. (Three Germans are also among the suspects.) International media incorrectly reported comments Bremer made in the newspaper Die Welt, and a story quickly circulated that only three of the accused were refugees. The next day, Bremer called that “total nonsense” in an interview with the Associated Press and emphasized that an “overwhelming” number of the 73 suspects were refugees. But by then, the misreported narrative had taken hold, internationally and inside Germany.

That the perpetrators on New Year’s Eve were foreigners — not European foreigners, but dark-skinned men who have nothing more in common than the assumption that they were somehow Arab — has fed a primal fear: that no one is protecting "our women," who are now, clearly, at risk from "them."

"At Octoberfest, at Karnaval, we always have a lot of sexual crimes ... But society accepts that."

This is also an old narrative in Germany. Images of white women helpless before dark hands on their breasts or around their waists were common in colonial propaganda. After the events in Cologne, a right-wing magazine tapped into that visual historical memory with a cover image of a white woman with crystalline blue, terrified eyes and a dark hand clamped around her mouth.

In Bielefeld, a small town two hours by train from Cologne, a group of men who call themselves the burgerwehr, or citizen's protection force, roamed the city streets in late January, dressed in black and stopping anyone they chose to check IDs, in the name of protecting women. If the police won't do it, their logic was, we'll have to do it ourselves. The police, meanwhile, said several times publicly that the groups are unauthorized and should disband.

But the feeling that brought the burgerwehr out in Bielefeld is a feeling that swept the country, with a surprising outcome: The critics who had earlier victim-blamed and slut-shamed in conversations about women’s rights had turned into feminists overnight.

"It was frustrating to see," said Anne Wizorek, a feminist in her early thirties. Wizorek became famous in German feminist circles with #aufschrei, which means "cry out," a hashtag she used, on a whim late one night in 2013, to encourage women to talk about daily sexism and street harassment. Spontaneous collective storytelling wasn't all that common on German Twitter, Wizorek says, but the outpouring was immediately huge. Wizorek then wrote a book called Aufschrei that argued for the need for feminism in Western societies that many, including young people, assume have solved all their gender inequities.

Wizorek noticed something surprising in the Cologne debate: The people who accused her in 2013 of hyperbolizing women’s issues or turning feminism into a political cudgel accused her after Cologne of toning down her social criticism because the alleged offenders were dark men.

"This kind of criticism was coming from people who, if we look back at the discussions we were having in 2013, said that sexism is not an issue, and that when women get attacked, they should just fight back," she said. "I could already see that this was being exploited, that women's rights were just stolen here to actually progress with an actual, racist agenda against refugees in general and against Muslims. This tension has been building up since the summer. There were people, mainly conservative people, trying to frame refugees as rapists, saying it's a risk letting them into the country."

Wizorek noticed something else: Very few of even the feminist voices raised in the spate of commentary that followed were women of color. So she and other, predominantly young German feminists created a network called Ausnahmslos. In English, they've called the movement "No Excuses," and have crafted a platform of political demands, including changes to Germany's narrow sexual assault law, increased support for rape crisis centers, and improved training for police on how to respond to sexual assault complaints.

But the German word literally means "unexceptional," and it brings to attention the fact that sexual assault actually happens fairly regularly in Germany — including on public holidays. "At Octoberfest, at Karnaval, we always have a lot of sexual crimes," said Heike Lütgart, the criminologist. (Karnaval is the German holiday just before Lent begins, and Cologne is basically the national capital of the celebration.) "But society accepts that. It's just like that."

According to national statistics, between 7,000 and 8,000 rapes are reported every year; BFF estimates those figures represent only 5% of the real number of cases.

It's an important point, says Emine Aslan, a co-founder of the group, because it's one of the facts that divides real feminist allies from false friends. Since Cologne, she said, "people who were never interested in feminism, who for years had been silencing feminists, suddenly started to claim feminism to produce racist discourse."

Those claims have also galvanized protest. In Bielefeld, not far from Cologne, 300 people turned out one cold Thursday night in mid-February just to protest this discourse. "No racism in the name of fighting sexism," they chanted. (It's less clunky in German.)

Sophia Stockman, 26, was one of the organizers of that march. She thinks the newfound concern of conservatives for women's rights has its own telling silences. "There's a lot of violence against refugee women, women on the move, women here in the home sphere, but no one is talking about that. The only form of violence we're talking about is refugee men on white women."

For Stockman, this isn't just about rhetorical appropriation. The consequences of the narrow focus on foreigners as the only perpetrators of sexual violence terrifies her. She thinks that focus has made it possible to express opinions once considered taboo — "I'm not a racist, but…" — and that normalizing this kind of rhetoric has made it easier for right-leaning politicians to implement stricter anti-immigration policies, like fast-tracking Syrian asylum applicants and turning away others from so-called safe countries without even an asylum review.

And this — this hierarchy of help — terrifies her.

"It really scares me, that there's two types of people now, that some are more worthy to save," Stockman said. "It scares me from the Holocaust. We shouldn't compare, but — yes, it scares me."

Claudia Vösen had a different experience with racism in the Cologne conversation. She was separated from her 15-year-old daughter and her husband at the train station and then was groped on the breasts and inside her pants by the men who surrounded her, she told Emma magazine. When she discussed the assault on a local Facebook group, she said commenters told her “it wasn’t all that bad, and that we were being racist against refugees.”

This is partly why the fight over the real meaning of Cologne — the fight about those questions that keep Zekina up at night, about why Cologne happened, and why there was such an outburst — that fight has split even German feminists. Stockman and others, like Aslan and the Ausnahmslos activists, are on what you might call the intersectional side of the Cologne debate, joined by voices who believe sexual violence is wrong, regardless of the perpetrator's nationality.

On another side are women such as Alice Schwarzer. Schwarzer is something like the Gloria Steinem of Germany. The 73-year-old founder and publisher of Emma, Schwarzer became a feminist activist in the 1970s, focusing at first on abortion access. More recently, Schwarzer has called wearing the hijab an act of oppression. In her 2010 book, Die große Verschleierung: Für Integration, gegen Islamismus (which means The Big Disguise: In Favor of Integration and Against Islamism, though it hasn’t been translated), and in public discussions, Schwarzer lays out her argument that a politicized, "extremist" Islam is unequivocally incompatible with women's rights, an incompatibility she sometimes calls Germany’s “false tolerance.” She’s also often misunderstood, from her perspective, as being Islamophobic.

In the Cologne attacks, Schwarzer saw another example of what is fundamentally a culture clash — a collision between Western liberal values of tolerance and respect for women and another set of values, religiously instilled, that devalue women and reinforce male supremacy. “The Islamists have declared a war against the West,” Schwarzer wrote. “Are they now pursuing that war, in the middle of Europe, using sexual violence as a weapon?”

It’s another way of asking a lingering, basic question: What, actually, happened that night? Were the crowds, the chaos, the groping and theft a crime of opportunity, or a crime of ideology?

"In the beginning, the police were trying to give the impression that the sexual violence was only a bait, a way to hide the 'real' crime — that these men wanted to steal things," she said. "Some media and women’s rights activists from abroad and especially the Arabic world, said, 'We know this kind of thing from Tahrir Square; we’ve seen this before. We have had this problem for years.'"

One of those activists is Marieme Helie Lucas, an Algerian sociologist and the founder of the Network of Women Living Under Muslim Laws. In an essay that’s been translated into six languages, Lucas drew connections between Cologne at New Year’s and Cairo during the Arab Spring, in 2011, when Egyptian women protesting for democracy were mobbed, groped, and assaulted. The connection between Cologne and Cairo was so obvious to Lucas that she saw an element of racism in overlooking it. “It seems Europe cannot learn anything from us and that nothing that happens or happened in our countries can be of any relevance to what goes on in Europe,” Lucas wrote.

Eul and her colleague Louis believe the violence was an organized assault against women, and theft was used as a cover. State authorities, in a January 10 report on police response to the New Year's events, said they could not establish whether theft or sexual assault was the perpetrators' primary motivation: Sexual violence complaints are a little less than half of the roughly 1,100 criminal complaints state prosecutors have received. No one has appeared in court yet to answer to sexual violence complaints, and it could be years before it's clear just why the crowd assaulted women.

And that, of course, is only if it comes to a court case, which brings Louis right back around to the law.

"Politicians very quickly after the incident said, 'Oh, the perpetrators have to be punished very hard, very strongly, with all the power of the law.' I said, 'Uh, they won’t be punished at all, because our law doesn’t work.'"

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