You hear and read the terms “sexualized violence”, sometimes also “sexual abuse” or “sexual assault”, sometimes synonymously, sometimes in distinction to each other, in the press and social media. It is not uncommon for the terminology to be blurred, suggesting that the author has also paid little or no attention to the origin of the terms. The following is therefore a short lexicon of how to use all these terms correctly under criminal law and which of these terms may not even have a criminal law background. Not all forms of sexualized violence can be subordinated to these terms. A few have been given their own specific names (e.g. “violation of the intimate area through image recordings” – also known colloquially as upskirting or downblousing), while others are not punishable or are subject to criminal offences that are also used outside of sexualized violence, such as insult in relation to so-called catcalling.
The criminal law terms
“Violence“: If, for example, a person is held against their will, beaten or locked up and then subjected to sexual acts, this constitutes physical coercion. Rape is a special form of this violence and requires the penetration of the victim’s body.
“Sexual assault“: A sexual assault occurs when the victim is drunk or under the influence of narcotics or is otherwise unable to consent to a sexual act, for example due to a mental disability, and the perpetrator nevertheless performs sexual acts on this person.
“Sexual coercion“: If a boss threatens to fire an employee if she does not engage in sexual activity with him or if the house detective promises the shoplifter that she will not report him if he engages in sexual activity with her in return, i.e. if the victim is threatened with a negative consequence, then this is sexual coercion.
“Sexual harassment“: If a person touches another person on the buttocks or chest, for example on the streetcar or in a club, this is harassing physical contact, which criminal law calls sexual harassment.
“Sexual act“: The law continues to speak uniformly of sexual acts. There is no precise definition for this; what matters is that an objective observer perceiving the process would affirm the sexual reference. However, some understand the term “sexual” to refer exclusively to consensual acts; the term “sexualized” is demanded politically and is intended to differentiate itself from this and emphasize that such acts are about power and violence. Criminal law does not need this distinction. This is because general freedom of action makes it possible to consent to any punishable act against oneself, i.e. to agree to it. BDSM practices, for example, are often a criminal offense, but are of course unpunishable if both parties consent to the act.
“Pornography“: The essential characteristic of pornography is that it is aimed exclusively or predominantly at the arousal of a sexual stimulus. Furthermore, there is disagreement in legal scholarship as to how pornography can be defined precisely. Critics are of the opinion that pornography trivializes what criminal law wants to criminalize, because the term is also used for films, videos and other image material that are not criminally relevant
“Sexualized violence“: The term ‘sexualized violence’ is not only used in the press and social media, but also in the social sciences, for example. You will search in vain for a clear definition. Rather, it serves as an umbrella term for all acts that violate a person’s right to sexual self-determination. In other words, sexual acts that are imposed or coerced. It is not uncommon for a person to be humiliated or belittled. Such a term, which can be used and understood in so many different ways, is therefore not suitable for criminal law. This is because, on the one hand, it is not clear exactly which acts are to be covered, and on the other hand, the understanding of the term is often based on the subjective perception of the victim, i.e. on what the individual perceives as overstepping their own boundaries. However, to ensure that all citizens know exactly which actions are punishable, the Criminal Code must clearly and unambiguously explain the actions that are prohibited. This also means that it must not depend on a person’s feelings as to whether an act is punishable, but that it must be clear from the outside whether it is a consensual act or not.
In addition, the term “violence” used in “sexualized violence” is problematic because for more than a century, the Criminal Code has understood “violence” in other criminal offences (for example, coercion or robbery) to mean any physical activity through which physical coercion is exercised to overcome resistance that has been offered or expected. This means that violence is always accompanied by an impact on the body. In addition, the victim must be expected to resist. This does not apply to many forms of what is colloquially referred to as sexualized violence, such as secretly photographing the intimate area or unexpectedly touching the clothed breast. According to the criminal law definition, the term “violence” in criminal law therefore covers a much smaller area of application than is politically meant by the term “sexualized violence” and is therefore not used across the board in the Criminal Code.
Dr. Jennifer Grafe, LL.M., is a lawyer and academic and researches and teaches in the field of criminal law and criminal procedure law with a special focus on sexual criminal law and in the field of queer law and queer legal theory at the Ruhr University Bochum and at the Eberhard Karls University Tübingen.
Read more:
Julia Habermann: Partner homicides and their judicial sanctioning. A comparative judgment analysis of partner homicide as a form of femicide, (last accessed on 13.05.24).
Deutscher Juristinnenbund: Stellungnahme: 23-02 zum Entwurf der “Richtlinie des Europäischen Parlaments und des Rates zur Bekämpfung von Gewalt gegen Frauen und häuslicher Gewalt” vom 08.03.2022, Stellungnahme vom 10.02.2023, (last accessed on 13.05.24).
German Women Lawyers‘ Association: Open letter: 24-01, Women demand their rights: Urgent open letter to Justice Minister Buschmann (FDP) and the Federal Government on their blockade stance on the EU-wide protection of millions of women from violence, Open letter of 31.01.2024 (last accessed on 13.05.24).
Deutscher Juristinnenbund: Press release: 24-10, Wichtig trotz großer Leerstelle: djb begrüßt EU-Richtlinie zur Bekämpfung von Gewalt gegen Frauen und häuslicher Gewalt, press release of 08.02.2024 (last accessed on 13.05.24).
