The upper house of Germany’s parliament, the Bundesrat, on Friday backed introducing the “Only yes means yes” principle into the country’s legislation on sexual offences.
A motion put forward by the city state of Hamburg secured a majority in the chamber.
The non-binding resolution formally calls on the federal government to draft legislation, although Chancellor Friedrich Merz’s coalition is under no obligation to do so.
‘No means no’ still in force
The “No means no” model has applied In Germany for the past decade. Supporters of the more far-reaching yes-oriented approach – which is applied in some other EU members like Spain – regard the absence of voluntary, recognizable consent to a sexual act as the key criterion for its criminality.
Proponents of the yes rule point to cases in which victims of sexual assault, due to fear or exceptional psychological circumstances, find themselves in a state of incapacitation and are therefore unable to resist or actively object.
However, opponents of such a reform, particularly from the ranks of Merz’s conservative CDU party, argue that this would be a false solution, as the problem of proving the offence – as with “No means no” – would remain, given that such offences are usually committed without witnesses.
Shock, fear and sleep can thwart active consent
It is important to make it clear “that any sexual act carried out without consent is a criminal offence,” said Hamburg senator for justice, Anna Gallina, at the last Bundesrat session before the summer recess.
This must also apply if the victim was in a state of shock, asleep or remained silent out of fear, Gallina said.
Numerous EU countries had already adopted the yes-oriented principle, said Saarland minister for justice, Petra Berg. “Germany must not lag behind the rest of Europe on this issue,” she added.
The Bundesrat resolution is not legally binding, but formally asks the federal government to prepare legislation. It will now be up to Merz’s coalition to decide whether to take up the proposal and submit a bill to the Bundestag, the lower house.
The current coalition agreement does not provide for such a reform. However, Justice Minister Stefanie Hubig of the centre-left SPD signalled at a meeting of Germany’s justice ministers in June that the government could still seek a compromise on the issue.
Hubig said at the time that she had sensed a great deal of openness to discussing the further development of the legal definition of rape – including within Merz’s party.
For young people, she said, “only yes means yes” would definitely be introduced.