“Why didn’t he stop the abuse?”

Ines Kappert: You have worked in criminal law for 25 years and are one of Germany’s most prominent lawyers. What do you believe are the most significant misogynistic myths in German courtrooms when it comes to accusations of rape?

Christina Clemm: One is the idea that a woman¹ is pressing these charges in order to gain some kind of advantage for herself. For example, in cases where the perpetrator is the father of her children, it is often suggested that she is pressing charges in order to have custody taken away from him or to prevent him from having access to their shared children. Or perhaps she wants to get rid of a disagreeable male boss or colleague in order to further her career. Another myth is that a woman presses rape charges because the sex was bad or because she wants to conceal an affair from her partner. Another myth is the blanket assumption that victims of sex crimes can never be happy or joyful again afterwards and will never be interested in sex again. If they do enjoy sex afterwards or do not seem particularly traumatised, there is the assumption that they were not actually raped after all. And many people still believe that a woman raped by her partner would immediately leave him and press charges; there is no room for ambivalence.

If she doesn’t leave him immediately, it wasn’t rape?

In any case, it’s certainly regarded as odd and an acceptable reason to doubt the veracity of the victim. There is also a popular myth that women claim to have experienced sexual violence because they are generally unhappy with their life and want to blame their circumstances on some kind of imagined assault.

How does such a myth materialise?

The idea is that other people, therapists for example, have talked these women into believing that their unhappiness derives from a repressed instance of sexual assault. That is particularly the case when the assault was a long time ago and the victims only have vague memories of it, at least initially. It is alleged that therapists are pursuing their own agenda instead of recognising that there are mechanisms of repression and scientific methods for dealing with them. Recently, I am increasingly hearing the assertion that in our emancipated society women simply don’t get assaulted or raped anymore. After all – so the argument goes – women are now enlightened enough to adequately defend themselves.

We should congratulate those women who are finally able to leave a violent partner

How important is this assumption that emancipation protects women from rape?

I recently had a case where my client was initially blaming herself for what had happened. She even apologised to the perpetrator. When I tried to explain to the court that such feelings of shame and guilt are typical among victims of sexual violence, the judge responded tetchily: “The assertion that women blame themselves is very ‘last century’.” That sort of thing didn’t happen in Germany anymore, he claimed: “We have progressed; we are equal now.” Since I was asserting that often women don’t fight back, can’t scream, are paralysed with fear, develop feelings of shame and guilt, then I was the one pushing women into the role of victim, apparently an outdated role that no longer exists.

On a scale of 1 to 6, to what extent do these myths and misrepresentations prevent justice from being done? One means it is a problem but in the end a fair judgement is reached, and 6 means they make a just outcome for victims of sexual violence totally impossible.

5 and a half to 6.

What positive and negative changes have there been in the past few decades?

A great deal has been achieved on the legislative front. One important step was new legislation on sex offences introduced in 2016. Until then, sexualised assault was only punishable if it was accompanied by violence, threats or exploitation of a vulnerable situation. Now it is enough if the perpetrator has recognised that the act he is committing is against the will of the injured party. Also, victims’ rights were laid down in Germany’s Code of Criminal Procedure; video testimony is now accepted; and professional psychosocial support can be sought during the trial process.

And on the negative side?

In legal practice, positive developments often go hand in hand with the loss of established rights. For example, for many years there has been the option of a private accessory prosecution (Nebenklage). This gives an individual in a court case the chance to not just be the victim, a “mere object”, but to play an active role in the proceedings – such as by putting forward a motion or exercising their right to ask questions. Of course, to do that you have to stay comprehensively informed about the issues in the proceedings, which means being allowed to inspect the case files. But a few years ago, there was suddenly a change in practice in case law whereby victims were not permitted to inspect the files because they might then rehearse their statements and adapt them to the contents of the file.

Even as a lawyer, you cannot assert their right to inspect those files?

Oftentimes not even I am allowed to see the case files because of the concern that I might pass them on to my client. In actual fact, I always advise my clients not to read the files before they are questioned as that can impede the psychological assessment of their statements. If they haven’t read the files, I can prepare them much more effectively for the main hearing. But of course I have to know the files or I can’t submit petitions on behalf of my client; I can’t exercise my own right to ask questions. So this case law constitutes an abrogation of the most important victims’ rights; it is a hollowing out via the back door of the option of a private accessory prosecution. It is also disrespectful towards the victim to allow a situation whereby she is participating in a trial where everyone else is fully informed about her situation, possibly including the most intimate details, but she herself does not know exactly what those other people know.

Would you say that the legal reform has proved to be a mistake?

No. The reform does have a bitter aftertaste as it was only introduced following the instances of sexual violence in Cologne on New Year’s Eve 2015/16, which were primarily attributed to non-Germans. That established a connection between those sex offences and racial resentment. Nevertheless, the reform was important. It’s just that the courts are finding lots of loopholes and ways of not implementing the rights that have been incorporated into that reform.

It is estimated that only around ten percent of sexual offence victims in Germany actually press charges. And only an estimated eight percent of prosecutions actually lead to a conviction.

On the other hand, there are lots of committed judges and public prosecutors who are addressing rape myths and perpetrators’ tactics. And yet we still have appallingly low conviction rates. It is estimated that only around ten percent of sexual offence victims in Germany actually press charges.

And only an estimated eight percent of prosecutions actually lead to a conviction, although that figure varies greatly from state to state. In Saxony around 21 percent of the defendants were convicted in the period 2014 to 2016, whereas in Berlin it was only three percent.

Why is the conviction rate in Berlin so much lower than the national average?

Probably because the courts and police in Berlin are so poorly equipped. There has been no in-depth analysis of the issue to date. The figures I mentioned come from a 2019 study by renowned criminologist Christian Pfeiffer from Hanover. Unfortunately, his findings confirm my own experiences. In Berlin especially, and in Germany generally, you might say there is a culture of impunity.

You repeatedly refer to complainants being treated disrespectfully during proceedings. What is happening there?

Criminal proceedings always focus on the defendant. It’s all about the question of whether the full force of the law should descend on this person, taking away their freedom, perhaps for many years. In such cases, the injured party is just another piece of evidence; they are meant to help the state make the correct judgement. The defendant is permitted to keep silent, to lie – they are presumed innocent. And that is quite right, or it wouldn’t be due process. If the injured party lies, on the other hand, they are guilty of an offence. They are not allowed to keep silent; they have to testify. And this is the imbalance we have to work with. Instead of being treated appropriately, the injured party is torn to pieces during interrogation as a witness to the crime of sexual assault. There is barely a question that may not be asked, even if it has nothing to do with the case.

How are such questions justified?

It’s justified as testing the reliability of the witness. Questions might be asked such as, “What was your sex life like before the alleged crime? Have you had a large number of sex partners? Have you ever accused previous partners of assault? Have you already been the victim of such a crime and was the other alleged perpetrator convicted? Do you like telling stories? Have you ever lied? Do you have secrets?” Almost no bounds are set on the questioner’s imagination. Many victims find the situation in the courtroom traumatic. Maybe they’ve been raped before; maybe they experienced sexual abuse during childhood; maybe they had an abusive ex-partner but decided not to press charges, not to testify. Now they are in a position where they have to tell the truth and so they face a situation where those earlier experiences that they never wanted to talk about are suddenly opened up to public scrutiny. Or perhaps they have pressed charges before but the case was dismissed. Then they come across as someone who’s always making accusations against innocent people. This is a horrendous experience in so many ways for the people affected. If the parties to the proceedings are not adequately informed – and for instance do not know that many women are exposed to gender-based violence on multiple occasions throughout their lives and that those individual instances of abuse are unrelated, that people sometimes say things that aren’t true but that doesn’t mean they should therefore be deemed entirely unreliable – that creates an unbearable situation for the injured party. Of course, witness statements must and should be judged critically, but this should happen in a respectful manner, and the questioning should be transparent and well founded.

Just as a defendant is innocent until proved guilty (“presumed innocence”), an equivalent must be created on the other side – “presumed victimhood”. Each and every second we must treat the complainant as if they have indeed fallen victim to a serious crime – until proved otherwise.

Why hasn’t the legislature tried to remedy this situation?

Actually it has. A few years ago the term “injured party” was incorporated into the Code of Criminal Procedure. The “injured party” is defined as a person who claims to have been injured. That is “presumed injury”. But this approach has not yet properly made its way into practice. Many judges feel unable or unwilling to adopt this approach, claiming that it conflicts with the concept of presumed innocence, insofar as they even practice that. That’s nonsense, of course!

You’ve mentioned a “backlash” in the courts. At the same time, feminism is hipper in Germany than it has ever been before. How do those two trends fit together?

First of all, not that many people in the judiciary would actually define themselves as feminists. Lawyers tend to be rather conservative and to come from affluent, educated, upper-middle-class backgrounds. They’re not usually particularly progressive. Of course there are a few who make their way through the institutions and who study law so that they can use it as tool to effect change. They have feminist, left-wing, anti-racist etc. beliefs and act accordingly. But there are few such individuals. There are feminist lawyers, there are even a few feminist professors now, maybe there are even a few feminist judges, but they are the minority. The judiciary has almost completely ignored the debates on structural gender-based violence, misogyny, racism and, most definitely, classism. It hasn’t even adopted gender-sensitive language. Many judges would assert that they have to be “apolitical” in order to make objective judgements. But of course they are individuals with their own political convictions, and disturbingly often they have conservative or even extreme right-wing political views. When it comes to society as a whole, I’d say that although feminism may be hip, with cool slogans splashed across T-shirts, there is still widespread denial of patriarchal structural violence. There is certainly little recognition of the fact that patriarchal structures benefit from gendered and racial violence. For example, the German government boasts of its new, feminist foreign policy, but at the same time Europe is increasingly tightening its border regime, allowing thousands of people to die.

Don’t judges in Germany have to undergo further training?

No. Apparently it would endanger so-called “judicial independence” if judges were forced to take additional training. Also, at no point in their university education or on-the-job training are law students sensitised to the issues of sexism, racism and classism. Although written judgements very rarely actually contain misogynistic or racist passages – they are too careful for that – such statements are very common in oral proceedings. A great deal of linguistic violence occurs, especially in criminal and family law.

Can’t you, as a lawyer, intervene?

Of course I try to, but it’s difficult. If I were to stand up in court and say that I consider this or that a racist or sexist narrative, that would probably not go down very well with the people who make the decisions. So I have to be careful for the sake of my clients.

Another problem are systematically poor investigative procedures. What’s the reason for that?

Sex offences and domestic violence are not areas that appeal to ambitious police officers. The crème de la crème of the Berlin police force, for instance, either works in counterterrorism or on teams fighting so-called “clan crime” – which, by the way, is another example of a racist narrative. At the same time, the units who deal with gender-based violence are ill-equipped and understaffed. They simply do not have the capacity to examine the computer or phone of the accused, to appropriately judge their social sphere, to promptly conduct witness questioning, and much more. Often, proceedings do not take place until two or three years after the complaint was made to the police. In the meantime, the victim’s memories have faded, leading to the acquittal of the accused in many cases.

Each and every second we must treat the complainant as if they have indeed fallen victim to a serious crime – until proved otherwise

Is femicide a reaction against the progress made by feminism?

In Germany, one woman is murdered by her partner or ex-partner every three days; attempted murders happen every 36 hours. And those are the cases we know about; the unreported figure is likely to be much higher. I do believe that there is a correlation between the increased violence and the progress of feminism. For example, back when men were able to still consider women their property and this concept was protected by law, if a problem arose then two men would fight one another. The woman was not the target of the violence; she was not able to exercise her free will but had to go with whichever man emerged victorious. These days it’s no longer the “new owner” that has to be disposed of, rather it is the woman herself who has to be ill-treated or even killed in order to defend the man’s honour or salvage his masculine pride. In general, however, femicide is not a direct consequence of feminism – patriarchal violence has a number of different causes.

You are not calling for tougher sentencing but for proceedings to be expedited. Why, considering that it is more expensive?

Numerous studies have shown that long prison sentences do not work as a deterrent. Sometimes I think it would be better to immediately confiscate a perpetrator’s car or barbecue or to ban him from drinking alcohol. That’s something that would have a greater impact on him than a fine that is imposed years later and relatively quickly paid off. I believe the justice system should spring into action a lot more quickly. The perpetrator should be made to feel that his actions are viewed seriously and that the state prioritises the fight against gender-based violence. I would also advocate proscribing effective anti-aggression courses, re-education and exit programmes. Yes, that’s complicated and expensive, but new approaches are urgently needed.

Do you have a suggestion?

I have many. As well as improving judicial procedures and compensating victims, it is important to change the discourse. At the moment it’s insanely difficult to talk about the perpetrators. Anyone who tries to do so is immediately bombarded with cease-and-desist letters – which can be painfully expensive to challenge. And yet everyone knows that there are very many injured parties and very many perpetrators, and that only a small fraction of the injured parties actually press charges and most don’t even want a criminal conviction, they just want the abuse to stop. But that will only happen if we finally address the topic of toxic masculinity.

What protection is currently offered to injured parties?

If we assume, for instance, that a woman is being seriously intimidated by the father of her children, if he is even threatening to kill her, then there isn’t actually any way to effectively protect her. Although the woman has the right to physical integrity, the man also has the right to see his children. The best outcome for her would be to break off all contact with him and disappear somewhere, but in many cases she would then be accused of abducting her children. This is a very difficult topic. Of course, the best way to protect such women is to get the perpetrators to stop committing violence. If we could do that, we wouldn’t need women’s refuges and better facilities; the problem would solve itself. So the big question is: How can we create a social climate in which men don’t even become violent in the first place? To do that, we have to start with boys.

What might help?

The best help would be an environment of solidarity. Audre Lorde wrote: “I am not free while any woman is unfree, even when her shackles are very different from my own.” And within the context of white, German, middle-class society that is something we have forgotten. Instead, people tend to think: “Such a thing wouldn’t have happened to me.” That kind of attitude is most commonly directed towards women who have been living with violence over a longer period of time. “Why didn’t you leave him earlier?” people say. Or “Why did you choose to be with that guy? Why didn’t you leave him the very first time he hit you? Why press charges now? Why are you still ambivalent about it?” And we actually need to do the exact opposite of that: we should congratulate those women who are finally able to leave a violent partner; we should empower them; we should have understanding for their ambivalence; and we should fight together against the injustices rather than simply relying on the justice system. And again and again we should instead be asking the question: “Why didn’t he stop the abuse?”