Lawyer Dr. Carolin Weyand: "Why is fare evasion a criminal offense, but catcalling is not?"

While women's rights are currently experiencing a backlash, we need loud, angry voices that drive change. One such voice is Dr. Carolin Weyand. She is a specialist in criminal law, a founding partner of a renowned law firm, a feminist, and recently appointed to the board of UN Women Germany. A particular focus of her work is the prevention and prosecution of sexual harassment and violence. In an interview with BRIGITTE, she explains why our criminal law is currently misogynistic, what needs to change, and why it's high time for women to overcome differences and finally unite.

BRIGITTE: You're a criminal lawyer and were recently elected to the board of UN Women Germany. What issues motivate you?

Dr. Carolin Weyand: One of my major issues as a lawyer is the reform of sexual criminal law. The rules of our coexistence are enshrined in the criminal code. It states what is permissible and what is not. And in my view, this is currently misogynistic and provides a gateway for old gender stereotypical images. Our criminal code, in its current form, promotes patriarchal structures.

How do you determine that?

This is evident, for example, in the so-called "no means no" solution for sexual assault. This standard was enshrined in sexual offense law in 2016 and states that any sexual act without the participants' recognizable consent is punishable. "No means no" therefore means that the woman—the vast majority of victims of sexual offenses are women—must indicate: "I don't want this." However, if the woman's recognizable consent is not recognizable, then the alleged sexual assault is not punishable—with few exceptions, such as the victim's unconsciousness.

What is problematic about this regulation?

Firstly, there is a major gap in protection when it comes to passive victim behavior, i.e. when women fall silent during an assault or even "freeze" at the very beginning. It must be taken into account here that some women remain silent because they fear that things will get worse, for example, that the situation will escalate if they do not participate. Many women also report that they immediately felt defensive simply because of their physical inferiority and therefore adapted to the situation as a precaution. This is a problem under criminal law, as sexual assault is generally not punishable if the victim has not demonstrated any contrary will. The "no means no" solution simply does not cover these constellations – with a few exceptions.

How often does this happen?

There are scientific surveys and studies on so-called passive victim behavior, in which between 40 and sometimes 70 percent of respondents who were victims of sexual violence stated that they experienced a kind of shock. Passive victim behavior is therefore clearly not an exception, but rather widespread in cases of sexual assault.

It is shocking how many attacks go unpunished.

Furthermore, the "no means no" approach promotes the basic assumption of a permanently sexually available woman: If she doesn't say "no," it is assumed that she wants it. There are decisions by law enforcement agencies that state in writing that it is not unusual for a woman to initially resist and that her resistance must be overcome.

In contrast to the "no means no" rule, with the "yes means yes" solution, the public prosecutor or the court must prove that HE could reasonably assume that SHE consented. Therefore, it is not generally permissible to have sex with someone who doesn't say anything, but only if one could reasonably assume that consent existed. The presumption of innocence would remain unaffected—this is also very important in our constitutional system—because the court would still have to prove that the perpetrator could not reasonably assume consent.

But that would mean that women would have to explain less about why they didn't resist, but rather the public prosecutor would have to prove that the perpetrator could not have assumed the woman's consent, right?

Yes, and that would be a great relief for women. I don't know of any other area of crime where victims are blamed or held so heavily responsible as in sexual crimes. This is so deeply ingrained in our society that victims often ask themselves, "Why didn't I do anything?"

Do you see any other loopholes in sexual criminal law?

Yes. For example, in the case of so-called "catcalling." Catcalling refers to sexist harassment on the street. This is still not punishable in our country. Catcalling encompasses not only the classic whistling but also verbal sexual harassment on a significant scale.

Can you give an example?

The Federal Court of Justice, for example, had to decide a case in which an eleven-year-old girl was asked by an older man on the street to go with him because he "wanted to touch her pussy." The Federal Court of Justice ruled the man's behavior not punishable under current criminal law. Verbal sexual harassment is currently legal in Germany.

How can this be?

Although our criminal code contains a crime of "sexual harassment," it only applies if the sexual harassment involves physical contact. That didn't happen in our example.

Can't it then be considered an insult?

No, the Federal Court of Justice has repeatedly emphasized in its decisions on insults that what matters here is that honor is being violated, not sexual self-determination. Verbal sexual harassment is generally not punishable. This sends a message. Not just to the girl affected in the example case, but to all of us. How can it be that riding the subway without a ticket is a crime, but sexually harassing girls and women is not?

So, all in all, there are a shocking number of gaps in sexual offense law. Why isn't this being changed in the criminal code?

First of all, it's a structural problem. We have to recognize that, for example, sexual harassment is not an isolated incident, but widespread in our society and a part of the socialization of girls and women. Furthermore, we are currently experiencing a backlash against women's rights – including in Germany. Therefore, the political imperative to adapt our penal code to the needs and realities of women in Germany is not particularly strong at the moment. Added to this is a lack of awareness of the problem among the general population. I see the structural deficiencies in criminal law in my daily work. The average citizen is unaware of this; they have little contact with criminal law. Only when you yourself or someone close to you is affected do the deficiencies become clear.

Yes, I think this reform is truly overdue. Women are stigmatized as criminals if they choose to terminate a pregnancy. Under current law, they are guilty of the crime and can only be exonerated through a contrived legal "trick" if certain conditions are met. This is unjust and inhumane.

Abortion opponents argue that they protect unborn life. What's your take on this?

Yes, unborn life is worth protecting, but this life does not grow in an external uterus, but in a woman's body. This is not just about a woman's right to self-determination, but also about her physical integrity and much more. Every woman who has ever been pregnant and/or given birth knows what pregnancy and childbirth mean - physically and mentally. And also what it means to raise a child. Why do we as a society agree to women being criminalized if they choose to have an abortion? What about men? Two people are involved in the creation of an unwanted pregnancy! In case of doubt, who ultimately raises the child if a separation occurs?

This begs the question: Why do we women continue to tolerate this unequal treatment? What do you think is needed for things to change?

Women as decision-makers! We need more women in leadership positions and at key decision-making levels. If women aren't on key committees, our issues won't be addressed, or will be addressed much less. In Germany, approximately 29 percent of leadership positions were held by women in 2024. That's simply far too few for us to be able to assert our positions through solidarity.

We should trust ourselves to take on challenging tasks more often than doubt our abilities. And when a woman manages to secure a seat at the decision-making table, she deserves encouragement. In my view and from my personal experience, women in leadership positions experience headwinds more often and more strongly than their male colleagues. This is particularly evident in Professor Brosius-Gersdorf's candidacy for the Federal Constitutional Court.

How did you perceive the debate and how do you assess what happened?

A woman as a candidate for the highest German court as the guardian of our constitution, a highly important position, seems – although there can be no doubt about her professional qualifications – to be more exposed to a storm of public criticism, some of it highly irrelevant and polemical, than a male candidate probably ever has been and will ever be. This, too, says a lot about the practical state of Article 3 of the Basic Law (men and women are equal) in our country.

How do you think we can mobilize women to make a real difference?

I think, above all, we need easily accessible information on legal issues and women's policy issues for everyone. And we need to unite with one another. Instead of emphasizing our differences, we should now focus on the bigger picture and our similarities. How many more years, how many more decades, are we willing to tolerate this unequal treatment?

Women who define themselves as feminists, like her, are often accused of "man-hating." Do you hate men?

No. I don't hate men at all. But I can understand when some women tell me about such feelings, because they're currently experiencing a lot of opposition and frustration. Hate, however, won't get us anywhere.

What we don't need is a battle of the sexes. It's not about women versus men, but about jointly shaping a fair coexistence on equal terms. Winning men as allies for equality is therefore absolutely key.

How do we win men as allies?

I believe it's only possible through empathy, shared development, and open debate about the framework for a more just future. My experience has shown that many men also identify with equality issues, whether for their own future in a more gender-equal world or because they feel connected to the situation of a woman in their immediate environment. We must fight, but not against each other, as it often feels right now, but with each other.

And if we feel anger because of structural inequality, that's good too. A woman who participated in the historic women's strike in Iceland in 1975 once said: "All the women really took to the streets; there was such a beautiful kind of anger in the air." And we need that beautiful anger again, not destructive, but transformative.

Brigitte

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