Interview on the discussion about Rammstein: Where abuse of power begins

The discussion about Rammstein singer Lindemann is about allegations of abuse of power. Criminal lawyer, Kampfer, explains in an interview how power affects relationships and when a situation becomes relevant under criminal law.

tagesschau.de: Is there a universal definition of abuse of power?

Simone fighter: No, the term is used very differently. Companies often define it something like this: Abuse of power occurs when a relationship has been entered into in a relationship of over-subordination and professional advantages or disadvantages have arisen as a result of this relationship.

The term “abuse of power” plays no role in criminal law. And in the vast majority of cases, what is meant by abuse of power is not a case for the prosecution either.

“Is that criminally relevant?”

tagesschau.de: What do you mean by power in this context?

Fighter: Power can be defined as the qualified superiority of one person over another. This is very common in human relationships. Often someone is more influential, smarter, wealthier or more beautiful than the other. And maybe that gives him power over the other. In principle, of course, everyone is free to engage in sexual relationships with power imbalances.

tagesschau.de: What questions do you pursue in your work when investigating abuse of power in the #MeToo context?

Fighter: As an external law firm, we are often asked to conduct an independent investigation into certain events – increasingly also in the #MeToo context. First of all, let’s find out what actually happened. Depending on the order, the first question is: Is this relevant under criminal law? Secondly: Are there rules within a company, an authority or labor law rules that have been violated? And thirdly, if not: Was the behavior still not okay and does the incident give reason to adjust internal company rules? We then summarize our findings and our legal assessment in a final report.

“It’s punishable to take advantage of such a situation”

tagesschau.de: What is punishable in the area of ​​#MeToo allegations?

Fighter: Criminal liability can essentially exist in two areas: It can be relevant under criminal law if the power in a relationship is distributed so unequally that one has to ask oneself whether the loser can form free will at all. Then a sexual relationship can be punishable per se, for example between prison staff and prisoners.

Aside from these special cases, sexual acts can be punishable if one has decided against sexual acts and this will is also visible to the outside world. However, this applies everywhere, so it is completely independent of whether there was a power imbalance in the relationship or not.

tagesschau.de: What if people can no longer express their will, for example because they are no longer conscious and have previously been given substances such as knockout drops without being asked?

Fighter: Of course, it is a punishable offense to take advantage of such a situation – unless this has been agreed beforehand.

tagesschau.de: Does that only apply to the involuntary giving of knockout drops, for example – or also to people who are drunk?

Fighter: Exactly the same applies when someone is so drunk that they are unconscious. If someone is still conscious but heavily drunk or is significantly restricted in the formation of their will due to drugs, the following applies: The other person can be liable to prosecution if he exploits this state without first having secured the consent of the person affected.

“Criminal law is the last resort”

tagesschau.de: In Spain, rape is also when someone is afraid to engage in sexual activity. In Germany it is a requirement that someone defends themselves verbally or physically.

Fighter: Not quite. If someone does not say no out of fear, but his no is clearly recognizable, that is of course also a criminal offence. In extreme, threatening situations – for example, when the victim is defenseless at the mercy of the perpetrator and must expect violence if they protest – criminal liability can also exist if there is no “no” at all. The same can apply to cases in which a so-called “sensitive evil” – for example the termination of the job – is threatened.

tagesschau.de: The allegations against Rammstein singer Till Lindemann describe situations in which young women are said to have handed over their cell phones, security personnel are said to have guarded doors and young women are said to have been alone with the super figure Lindemann. Isn’t it asking too much to say a clear no in such situations?

Fighter: I will not comment on the Rammstein case. But as already said: In certain threatening extreme situations, criminal liability can exist even if there is a complete lack of no. In such situations, an opposing will does not have to be expressed.

But it is also true that criminal law is the last resort. For sexual acts in this area, you can go to prison for five years. A vague feeling of being overwhelmed by the situation of one person cannot alone lead to criminal liability for the other. And how should such a limit of what is permissible be enshrined in law?

tagesschau.de: In the Rammstein case, social networks are discussing whether those affected are “their own fault” if they actively go into a backstage area. Is it relevant to the criminal justice assessment if someone shows such an initiative?

Fighter: In the abstract, the following applies: the question of initiative plays no role at all for the criminal assessment. Anyone who takes the initiative for a kiss can then object to further actions at any time. And that has to be respected.

“Complex Questions”

tagesschau.de: Does the question of initiating sexual relations outside of criminal law, for example in the context of companies, play a role?

Fighter: The question of how a situation started can play a role. Whether or not there has been an abuse of power does not depend on who took the initiative. Labor law plays a major role here. These are complex questions.

tagesschau.de: Those affected sometimes refrain from reporting because they see little chance of success when testimony is against testimony. Is that justified?

Fighter: Not necessarily. Of course, the chances are better if there is objective evidence – such as a video or the results of a medical examination that took place immediately after the crime. Often they just don’t exist. However, the courts decide on the basis of the so-called free assessment of evidence. If nine out of ten witnesses say the light was green and one witness says the light was red, judges can rule solely on the basis of the one witness if they believe him to be credible.

“The presumption of innocence must be preserved”

tagesschau.de: But isn’t this person often the alleged victim?

Fighter: Finding that out is the hard part. In any case, it is a widespread misconception that in every statement-against-statement constellation “in case of doubt for the accused” there is automatically an acquittal. The responsibility that judges bear here weighs heavily.

The idea of ​​not believing an abuse victim is unbearable. Equally unbearable is the idea that an inaccurate accusation, which unfortunately also exists, is believed.

tagesschau.de: How do you view the media’s role in covering #MeToo allegations?

Fighter: Of course, it is essential that allegations can be made public and taken seriously. But of course the presumption of innocence must still be preserved. I definitely see room for improvement here. The presumption of innocence seems to be little anchored in the minds of many people. And to be honest, the usual disclaimers at the end of a post are often of little help. They are taken just as seriously as information about risks and side effects associated with medication.

The interview was conducted by Stefanie Dodt for tagesschau.de.