Freely assembling to protest sexual assault.

Photographer: Roberto Pfeil/AFP/Getty Images

Fighting Rape, Germany Endangers Free Assembly

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Germany changed several laws this week in direct reaction to the New Year’s Eve attacks in Cologne by a disorganized group of young Muslim men. One change, implementing “no means no” in German rape law, was long overdue. A second, taking criminal history into account in immigration decisions, was probably inevitable and isn’t out of step with other countries.

But a third, which creates criminal liability for being part of an amorphous group and tacitly allowing an assault perpetrated by someone else, is more worrisome. It smacks of collective punishment, deviates from European criminal law norms, and threatens the right of assembly.

The part of the law that’s especially problematic, a section of the sexual assault law, hasn’t been officially translated into English, and my legal German is a little rusty. Nevertheless, I can affirm what news reports say: the law creates a crime punishable by up to two years for participating in a “personengruppe,” or group of people who harasses someone sexually.

On its face, the law doesn’t sound especially troubling. If I actively participate alongside other people in committing a crime, there’s no reason all of us shouldn’t be found guilty.

The problem is in defining what counts as participating in a group of people -- especially when the group has no identifiable membership and consists of a loose assemblage of people who may not even know each other and are hanging out in a public place, as the Cologne attackers reportedly were.

Green Party members of the German legislature and some legal experts criticized this aspect of the law before it was enacted. According to one interpretation that was included with the official bill, the law requires at least tacit assent to participating in the group that does the harassing.

The most worrisome aspect is that the law might enable prosecutors to charge anyone who happened to be in the vicinity when someone was harassed. That’s a special concern because the groups of young men in Cologne -- and elsewhere in Europe where similar attacks occurred -- were Muslims of varying national origins. The risk of racial or religious bias in future cases seems especially significant when a law is drafted so broadly and aimed at such a specific phenomenon.

Holding all members of the group responsible sounds a bit too much like collective punishment, which is ordinarily rejected by modern legal systems including the German one. The principle of criminal responsibility is supposed to be personal.  

In the U.S., the law of conspiracy functions as a partial exception to this ideal. If I agree with someone else to commit a criminal act together, we create a conspiracy. Under U.S. law, if the other person commits another crime as part of the same conspiracy, I can be held criminally liable for his act, even if I didn’t know that it was happening or even that it was intended.

But the vast majority of European legal systems, as well as international law, reject conspiracy liability precisely because it undercuts the principle of individual criminal responsibility.

So it’s especially worrisome that the new German law appears to go even further than conspiracy. The law of conspiracy ordinarily requires some proof that the conspirators have agreed with each other. The German law contains no such express requirement. As written, it would appear to cover spontaneous agglomerations of people. It’s not clear at all a prosecutor needs prove that they had agreed on a common motive of harassment.

One potential defense of the law would be to say that it resembles so-called Good Samaritan laws, which impose a legal obligation to do something to save someone in danger. Such laws, more prevalent in Europe than the U.S., can punish inaction rather than action.

But such laws generally don’t require a citizen to endanger himself or herself in order to interrupt a crime in progress. In that way, they differ markedly from the new German law, assuming it is interpreted to require a person who is standing with others to intervene in some way or else suffer criminal liability.

Then there’s the problem of freedom to assemble peacefully, a universal right recognized by German and international law. Obviously, this doesn’t include the right to assemble for criminal purposes. A lynch mob would not qualify. Needless to say (I hope), there is no fundamental right to gather in a large group to sexually harass women.

The devil is in the details: how to distinguish groups of people gathering lawfully in public from the members of those groups who take advantage of the gathering to commit a sexual harassment crime.

Without carefully distinguishing presence from participation, the German law could be used to restrict one of the most basic freedoms.

The problem of large-group harassment is a serious one. It deserves a legal response commensurate to its seriousness. The German courts could eventually narrow the existing law so that it protects against collective punishment and guarantees free assembly. If they do, then the law will turn out to have been for good purpose. But it should have been drafted more carefully.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Tobin Harshaw at tharshaw@bloomberg.net