The upper house of Germany’s parliament, the Bundesrat, on Friday gave its support for the introduction of the “Only yes means yes” principle into legislation on sexual offences.
A corresponding motion for a resolution, which stems from an initiative by the city state of Hamburg, secured a majority in the chamber and will now be sent to the federal government.
Whether the government of Chancellor Friedrich Merz now takes up the proposal from the country’s states is at its discretion.
‘No means no’ still in force
The “No means no” model has applied In Germany for the past decade. Supporters of the more far-reaching yes-oriented approach – which is applied in some other EU members like Spain – regard the absence of voluntary, recognizable consent to a sexual act as the key criterion for its criminality.
Proponents of the yes rule point to cases in which victims of sexual assault, due to fear or exceptional psychological circumstances, find themselves in a state of incapacitation and are therefore unable to resist or actively object.
However, opponents of such a reform, particularly from the ranks of Merz’s conservative CDU party, argue that this would be a false solution, as the problem of proving the offence – as with “No means no” – would remain, given that such offences are usually committed without witnesses.
Shock, fear and sleep can thwart active consent
It is important to make it clear “that any sexual act carried out without consent is a criminal offence,” said Hamburg senator for justice, Anna Gallina, at the last Bundesrat session before the summer recess.
This must also apply if the victim was in a state of shock, asleep or remained silent out of fear, Gallina said.
Numerous EU countries had already adopted the yes-oriented principle, said Saarland minister for justice, Petra Berg. “Germany must not lag behind the rest of Europe on this issue,” she added.
The current agreement between members of Germany’s coalition does not provide for such a provision. However, Justice Minister Stefanie Hubig of the centre-left SPD signalled at the Conference of Ministers of Justice in June that the coalition may still seek a consensus on the matter.
Hubig said at the time that she had sensed a great deal of openness to discussing the further development of the legal definition of rape – including within Merz’s party.
For young people, she said, “only yes means yes” would definitely be introduced.