Jonas Nolte Der sexualstrafrechtliche Schutz behinderter Menschen

About this book

Sexual criminal law aims to protect sexual self-determination. At the same time, it is intended to effectively protect particularly vulnerable persons from sexual abuse. However, in the case of people with disabilities, these two objectives are in tension with each other. Protection can turn into paternalism. Autonomy can be ignored.

This book examines whether the current sexual criminal law meets these different requirements. The focus is on Section 177 of the German Criminal Code (GCC), which, since the reform of 2016, places the will of the victim at the center of criminal liability. The book analyzes how this concept of will affects people with disabilities and whether the legal framework is adequate in terms of protection, both legally and in practice.

Based on the fundamentals of sexual self-determination, the concepts of will, consent and legal capacity to consent are examined dogmatically. Particular attention is paid to the question of which form of will should be decisive in sexual criminal law. Here, the thesis develops an independent approach that distinguishes between a merely “natural” will and a reflective will.

In addition, the thesis highlights structural risks of discrimination within the current sexual criminal law. It shows that certain elements of the offense are intended to protect disabled people, but at the same time can effectively restrict their sexual self-determination. The discriminatory potential inherent in the statutory elements under Section 177 GCC can only be countered by an appropriate interpretation.

The dissertation contributes to the current discussion on protection, autonomy, and boundaries in sexual criminal law. It is aimed at scholars and practitioners and offers an in-depth analysis of a legally and socially highly sensitive topic. At the same time, the work provides dogmatic guidelines for the interpretation of Section 177 GCC and impulses for a more nuanced development of sexual criminal law.