Philipp KlantenStrafbarkeit des ‘Upskirtings’ und des ‘Gaffens’

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On 1 January 2021, the amendments of the 59th Criminal Law Amendment Act (StÄG) came into force. This included the so-called ‟upskirting” and ‟downblousing” in the catalogue of offences of the Criminal Code for the first time. In addition, the offence of § 201a StGB was supplemented by the phenomenon of ‟gaffers”.

Already during the legislative process, the new offences were controversially discussed, both in terms of their punishability and their systematic classification. While the original draft planned that all three phenomena would be included in the norm of § 201a of the Criminal Code, the idea of creating a new provision for ‟upskirting” and ‟downblousing” in § 184k of the Criminal Code became established in the course of the procedure. In addition to problems about the exact location of the phenomena in the law, there were also problems about whether the penalisation of these forms of behaviour in the penal code should generally be questioned. The main points of criticism related to whether such a grave injustice would be realised at all that would justify the provision in the Criminal Code, and how any implementation problems could be solved in practice.

A review within the framework of criminal law systematics must therefore be directed at whether the new penalties of the 59th StÄG are in line with the ultima ratio principle or whether interests were in the foreground that were intended to provide proof of quick and cost-effective political action. Currents that deviate from the standards that should take precedence in criminal legislation and their results in legislation can be described by the term symbolic criminal law.

This paper analyses the individual offences and offence variants and examines the 59th StÄG for its symbolic characteristics. The main result is the development of a legal and empirical evaluation scheme and the comparison of the concrete legislative measures with it.

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