Only "Yes" is "Yes"? Lawyers Warn Against Hasty Decisions in Sexual Criminal Law

Following the non-final acquittals for ten youths, predominantly aged 14 to 17 at the time of the offense, who had sexual contact with a twelve-year-old, the Association of Prosecutors and the Association of Austrian Defense Lawyers warn against legislation based on specific incidents. Criminal law professor Ingeborg Zerbes, on the other hand, can envision changes to § 205a of the Criminal Code, which criminalizes the violation of sexual self-determination.

Acquittals after Sex with a Minor: Warning Against Incident-Based Legislation

This provision, in its current form, provides for up to two years imprisonment for cases where sex occurs with a person against their will. Zerbes suggested on Monday evening at a high-profile discussion event at the Vienna Juridicum to instead legally establish that sex is only allowed with consent. This would "lead to a clarification of the norm": "A suspect can then no longer say 'Why didn't you say no?'"

"From a professional perspective, I can say: Sexual contact only with consent. We as the Ministry of Justice proposed this ten years ago," said Fritz Zeder, head of the criminal law section at the Ministry of Justice since last year. The policy was not implemented at the time. However, recently, Justice Minister Anna Sporrer (SPÖ) made it clear that she wants to anchor the consent principle in sexual criminal law.

Defense Lawyers with a "Very Clear No" to Tougher Penalties

A "very clear no to the tightening of sexual criminal law" was expressed by Philipp Wolm, President of the Association of Austrian Defense Lawyers. "A 'Only a Yes is a Yes' would change the offense. I see no need for regulation here, especially since the courts already face significant challenges in evaluating evidence in these cases," Wolm pointed out. Sexual contacts usually occur "non-verbally. Is a nod enough then? What if both are impaired? Can one even consent then," wondered the Vienna defense lawyer. It is more important to focus on prevention work and to strengthen society's awareness of sexual self-determination.

Prosecutors "get along well with current law"

Anna-Maria Wukovits, Vice President of the Association of Austrian Prosecutors, also warned against hasty legislative actions. She appealed to politicians to "involve practice and experts" in the event of possible legal changes and to consider them only "after a broad discussion." "Practice gets along well with the current law. I see no regulatory gap," Wukovits stated.

In cases of offenses or crimes against sexual self-determination, there is often a lack of quality evidence, and prosecutors and courts often have to conduct a credibility assessment due to the lack of other evidence. "If something cannot be proven, an investigation must necessarily be discontinued or an acquittal must be made in a main hearing. This is not a failure of the judiciary or our legal system. This is part of the rule of law," emphasized the prosecutor, who specializes in sexual criminal cases at the Vienna Public Prosecutor's Office.

The goal of any potential legal change cannot be "to increase the conviction rate. The goal must be to provide practice with tools to fully clarify." Therefore, the creation of violence clinics is to be welcomed, where those affected by physical or sexual violence can turn for evidence preservation, said Wukovits.

(APA/Red)

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