Gender-Based And Sexualized Violence In Higher Education
Legal Situation In Germany
There is no uniform legal definition of sexualized violence or sexual harassment in German law. While the term “sexual harassment” is used both in the General Equal Treatment Act (German abbreviation AGG) and in the German Criminal Code (Strafgesetzbuch / StGB), “sexualized violence” is not a formal legal term. For example, the term “violence” is mentioned in section 177(5) StGB in connection with the increase in penalties for sexual assault, sexual coercion and rape. The AGG broadly defines sexual harassment as a type of verbal, non-verbal and physical conduct in section 3(4) : “Sexual harassment shall be deemed to be discrimination in relation to Section 2(1) Nos 1 to 4, when an unwanted conduct of a sexual nature, including unwanted sexual acts and requests to carry out sexual acts, physical contact of a sexual nature, comments of a sexual nature, as well as the unwanted showing or public exhibition of pornographic images, takes place with the purpose or effect of violating the dignity of the person concerned, in particular where it creates an intimidating, hostile, degrading, humiliating or offensive environment.” (See antidiskriminierungsstelle.de for the official translation.)
In the legal discourse, however, the term sexualized violence is also used to describe violations of the right to sexual self-determination. For example, the German Institute for Human Rights describes sexualized violence as gender-specific violence and a violation of human rights.
In the following, therefore, both terms are used and the legal situation in three legal areas relevant to higher education is presented in a cursory manner: Labor law, higher education law and criminal law.
Sexual harassment in the workplace is a discrimination according to section 2(1) Nos 1 to 4 AGG (for definition see above) under the conditions of section 3(4) AGG. The protection under the AGG is not limited to the office, the workplace building or working hours. The law prohibits any form of sexual harassment that takes place within an employment relationship, including business trips, travel to and from work, company parties, company outings, breaks, as well as SMS, e-mails or phone calls (Guideline in German / Fact sheet in English).
Furthermore, the Higher Education Acts of the federal states can provide special regulations due to the legislative competence for academia. This is also the case regarding different provisions on protection against sexual harassment and violence. These concern, for example, the tasks of the gender equality officers or the rights and obligations of students, which are not covered by the scope of protection of the AGG. In some cases, the Equal Opportunities Acts of the federal states also applies alongside or in addition to the Higher Education Acts. An overview of the relevant regulations can be found in the CEWS database on equality law in the category “Protection against sexualized discrimination and violence” (in German). There are isolated regulations on the de-registration of students who have violated the AGG.
The prohibition of sexual harassment in section 3(4) AGG applies only to persons who fall within the scope of the law according to section 2(1) AGG. These are in particular employees and applicants. According to section 24 AGG, the provisions of the AGG explicitly applies to civil servants employed by federal institutions, such as Universities. Students who do not have an employment relationship with an academic institution do not fall within the scope of protection of the AGG, as confirmed by a legal expertise of the Federal Anti-Discrimination Agency 2015. But some federal states have integrated regulations in their higher education laws regarding the application of the AGG to students, e.g. section 42(6) of the Lower Saxony Higher Education Act.
According to section 13 AGG, every firm, company and authority needs to set up a complaints office. The implementation of these requirements for academic institutions has so far been insufficient. Not all institutions have, for example, information about their complaints offices available online. Often the complaint procedures are also not regulated in detail or not sufficiently transparent. The German Association of University Professors and Lecturers (DHV) demands in a resolution, that clearing offices must be anchored and established by law and that comprehensive procedural precautions must be implemented.
Apart from the obligation to set up structures for handling sexual harassment cases, Employers also have the duty to take measures necessary to ensure protection against discrimination (section 12 AGG).This explicitly includes preventive measures.
The Role Of The Gender Equality Officers
The gender equality officers (GEO) have an important role in fostering gender equality in higher education. They are elected or appointed but always have an independent status. Their autonomy is secured by regulations on their resources and rights. Each of the 16 Higher Education Acts of the Länder contains an individual profile of the GEO and their substitutes (Vertreter*innen).
In view of the tasks and rights of the women’s and gender equality officers in the protection against sexual harassment and violence, different regulations apply in the federal states. There are clear differences between the federal states in the university and equality laws. Numerous federal states regulate the handling of sexual harassment cases within their equality laws and refer to the actors (e.g. women’s or equal opportunity officers) as the first point of contact. Most higher education laws do not address the protection against sexual harassment of university members, because of the application of the AGG. The Hamburg Higher Education Act (Hamburgisches Hochschulgesetz / HmbHG) expands the scope of protection to relatives of employees and members of the university who are not employees. They can also turn to the relevant equal opportunities officer in the case of sexual harassment in accordance with section 87(6) HmbHG.
In other federal states such as Berlin and Rhineland-Palatinate protection against sexual harassment is regulated as part of the equality plans within the higher education laws (cf. section 5a no 6 BerlHG; section 76(2), no 16 HochSchG). In contrast, the inclusion of the women’s and equal opportunities officers is regulated in the equality laws of these Länder (cf. section 17(7) LGG; section 24(1), (2) and (3) no 3).
Baden-Württemberg is a special case: In addition to the equal opportunities officer, the university provides a contact person who can be consulted for questions regarding sexual harassment (section 4(9) LHG) and finances the use of professional advice (see the corresponding press release in German).
The German Criminal Code (Strafgesetzbuch / StGB) regulates offences against sexual self-determination in chapter 13. On November 10, 2016 a reform of the criminal law on sexual offences came into force. Section 177 StGB was rewritten and sections 184i and 184j StGB were newly introduced. Since the amendment to the law came into force, sexual harassment, can also be punished (section 184i StGB). Previously it was only punishable in the context of labor on the grounds of the General Equal Treatment Act. The norm is designed as a so-called application offence, so that the victimized person concerned can decide whether to consider the harassment worthy of prosecution (in German: https://www.bpb.de/apuz/240913/sexualisierte-gewalt-im-reformierten-strafrecht?p=1).
A paper (in German) of the federal association of rape crisis centers and women’s counselling centers in Germany explains the new criminal law on sexual offences. This essay (in German) by Dr. Konstantina Papathanasiou informs about the reform from a legal perspective.