If an injured party is threatened to publish "nude pictures" sent by her to the perpetrator on "nude pictures sent by her to the perpetrator on Facebook, or to print them out and in her school in order to induce her to perform the sexual acts the perpetrator wishes sexual acts desired by the perpetrator, the perpetrator has committed sexual sexual coercion within the meaning of section 177, paragraph 2, no. 5 of the Criminal Code. the attempted stage of the offence. Based on this legal situation, the On the basis of this legal situation, on 9 April 2019, the 3rd Criminal Senate of the Hamm Higher Regional Court the appeal judgment of the Bielefeld Regional Court of 03.09.2018 (Case No. 011 Ns 41 (Case No. 011 Ns 41/18), which was challenged by the public prosecutor's appeal. and decision to another small criminal division of the Bielefeld Regional Court. referred back.
According to the findings of the Regional Court, the accused, who is now 30 years old 30-year-old defendant from Bünde had threatened a now 19-year-old schoolgirl, to publish the "naked pictures" she had sent him on Facebook or to print them out and hang them up in her school. print them out and hang them up in her school. In this way he wanted to to induce her to perform sexual acts he wanted.
Already before that - when the schoolgirl was about 16 years old - a lively writing contact had developed between them on WhatsApp. The witness fell in love with the accused. Around the beginning of June 2017, they exchanged nude photos via WhatsApp on the initiative of the accused. When the nude photos were sent, there were already first sexual innuendos on the part of the accused, who wanted to be sexually satisfied by the schoolgirl. He wanted to overcome her negative attitude by threatening to publish her nude photos or to hang printed photos in the area of her school. The pupil felt massively pressured and did not know what to do. However, the accused thought it possible that she would give in to his pressure. Finally, in mid-June 2017, the student went to the police and filed a complaint. During a subsequent search, the accused handed over his smartphone to the police officers, which still contained the five nude photos sent by the student.
On 06.03.2018, the Local Court - Court of Appeal - Herford (Case No. 3 Ls 100/17) sentenced the accused to six months' imprisonment for attempted rape. On the defendant's appeal, the Regional Court of Bielefeld overturned the aforementioned sentence and acquitted the defendant because - in the opinion of the Regional Court - he had not yet directly started to realise a sexual assault according to his conception of the act. The public prosecutor's office challenged this legal assessment of the Regional Court in its appeal against the appeal judgement.
The public prosecutor's appeal was successful. The 3rd Criminal Senate of the Hamm Higher Regional Court overturned the contested appeal judgment with the associated findings and referred the case back to another small criminal division of the Bielefeld Regional Court for a new hearing and decision.
The accused had - according to the senate - been wrongly acquitted. According to the case law of the Federal Court of Justice the threshold for the commencement of the attempt had regularly been exceeded if he had already threshold for the commencement of an attempt, if he or she had already committed a of the statutory offence. By threatening to take the "nude" files sent by the pupil to the nude pictures" sent by the student to the accused on Facebook or to print them out and use them in their and hang them up in her school, the accused had committed an act of coercion within the meaning of sec. of coercion within the meaning of section 177, paragraph 2, no. 5 of the Criminal Code - and thus a feature of the statutory element of the offence. At any rate, through this act of coercion, the accused had accused - which is a further prerequisite for the assumption of an attempt - violated sexual sexual self-determination as an object of protection under § 177 of the Criminal Code. underage pupil at the time. It was not necessary, that the schoolgirl had visited the accused at home.
Final judgment of the 3rd Criminal Division of the Higher Regional Court of Hamm of 09.04.2019 (Ref. 3 RVs 10/19 OLG Hamm).
Source: Press release of the OLG Hamm from 12.04.2019
GoldbergUllrich Attorneys at Law 2019
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
