What is the impact of the new penal code for sexual offences on residential regulations?

In September 2016, the new penal code for sexual offences came into force in Germany, implementing the long-demanded principle ‘no means no’. According to the new legislation, any non-consensual act of a sexual nature constitutes a punishable offence. However, this new legislation on sexual offences also involves a tightening of regulations governing the right of residence.

These amendments pertain both to the right of expulsion and the possibility of deportation. Expulsion means that a person holding a resi-dence title in Germany may be deprived of that title. It does not necessarily mean that this per-son can be deported because factually and le-gally this is often not possible. In such a case, the person will be denied participation in many areas of social life, for example, by withholding a work permit or the access to an integration course.

What is relevant in this context is the section of the Residence Act concerning the interest in expulsion, which can be of serious and of particularly serious public interest (section 54, Residence Act). In the past, the interest in expulsion was, according to section 54, sentence 1 of the Residence Act, considered as particularly serious, and it was mostly imposed on persons who had been sentenced to a prison term of at least one year and who had com-mitted an offence using violence or a threat of danger to life and so on. In the future, the in-terest in expulsion will be considered as parti-cularly serious in the case of any kind of sen-tence according to section 177 of the Criminal Code, thus making expulsion or deportation far easier. In addition to expulsions, deportations will be possible even if persons are in danger in their country of origin or if they are entitled to asylum. According to section 60 of the Resi-dence Act, deportation is also possible in those cases in which a person has been sentenced to a prison term of at least one year according to section 177 of the Criminal Code.

This means that persons can be excluded from refugee protection and that they will not be recognised as refugees. In any case, the Foreigners Office or the Federal Office of Migration and Refugees still has to determine whether or not there are obstacles to deportation. If, for example, persons have to face the death penalty in their country of origin or a form of incarceration that involves human rights violations or the like, they can still not be deported.

This tightened legislation entails more severe punishment for perpetrators without German passport, because this group of persons has to expect, in addition to being convicted according to the Criminal Code, a negative impact on their residential status. This legislation could also negatively influence the readiness to report offences, since affected persons might be reluctant to report a known perpetrator without German passport if this would lead to the perpetrator’s deportation.

Among the amendments was also the introduction of offences committed within a group (section 184j, Criminal Code). This pro-vision states that “whosoever participates in a group that coerces another person to commit an offence” is liable to prosecution. This way persons can be punished for acts they have neither committed nor anticipated. This legal provision represents a political reaction to the assaults in Cologne on the night of New Year’s Eve 2015/2016. The media coverage of these events created the impression that sexual harassment in Germany is primarily a problem related to perpetrators who are non-“bio-deutsch” (that is, migrants). There is reason to fear that, in the future, the definition of group membership will be strictly aligned with this very criterion.