Definition and significance: Abandonment in a helpless situation
Das Abandonment in a helpless situation is a central offense under German criminal law and describes conduct in which a person leaves another in a concrete and acute emergency or dangerous situation without providing necessary assistance. The essential factor is that the victim, due to a lack of self-help or special circumstances, requires support and, by being abandoned or due to a failure to provide necessary care, is placed in danger to life or bodily integrity.
This legal provision serves to protect particularly vulnerable individuals and especially safeguards the social welfare principle of criminal law.
Statutory regulation
Criminal Code Section 221 StGB
Das Abandonment in a helpless situation is set out in Section 221 of the Criminal Code (StGB) The wording of the provision is as follows:
Section 221 StGB – Abandonment
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(1) Whoever places a person in a helpless situation and thereby exposes them to the risk of death or serious bodily harm shall be punished with imprisonment of up to five years or a fine.
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(2) The same penalty applies to anyone who abandons a person already in a helpless situation, although they are obliged to care for them or have placed them in that situation.
This provision protects the life and bodily integrity of persons who, in their current situation, are dependent on the help of others.
Elements of the offense
Helpless situation
A helpless situation exists when the victim is not sufficiently able to protect themselves from dangers to life or bodily integrity and is dependent on outside help. This is the case, for example, with unconsciousness, severe illness, mental or physical disabilities, small children, or in the case of serious injuries.
Offender’s belonging
A distinction is made between offenders who:
- Persons with a duty of care are, i.e., persons who are bound to provide care either due to a particular legal relationship or by having actually assumed this responsibility (e.g. parents for their children, persons responsible for the supervision of dependents)
- Have caused a helpless situation bybringing the victim into such an emergency by their conduct
In both cases, abandoning the helpless person can be punishable by law.
Act and omission
The offense can be committed by either active conduct (for example, leaving the helpless person) as well as by omission if the offender is legally obliged to provide assistance and fails to do so (true omission offense).
Danger to life or bodily integrity
Abandonment must create a concrete danger to life or the risk of serious bodily harm. A merely abstract or remote danger is insufficient.
Distinctions and interplay with other provisions
Das Abandonment in a helpless situation under Section 221 StGB is distinct from other offenses such as failure to render assistance (Section 323c StGB), which is punishable already when any person fails to render assistance, regardless of a specific responsibility. Section 221 StGB, however, requires a special guarantor position (duty of care or causing the helpless situation).
Concurrent criminal liability may exist, for example, if the abandonment occurs in conjunction with other criminal offenses such as bodily harm, negligence or homicide offenses .
Independent and dependent commission
The offense can be fulfilled both by independent conduct (intentional abandonment for the purpose of abandonment) and by failure to act (breach of duty by a caregiver). However, it is not sufficient that the helpless person put themselves in this situation – the offender must bear relevant responsibility.
Attempt, negligence, and sentencing
Attempt
Attempted abandonment in a helpless situation is punishable (Section 23 StGB in conjunction with Section 12 paragraph 1 StGB), since it is a felony (Verbrechen) under criminal law (minimum penalty of one year imprisonment).
negligence
A negligent commission is not covered by Section 221 StGB; however, in individual cases, other provisions may apply, especially if damage occurs (e.g., negligent bodily harm or negligent manslaughter).
Range of penalties
Section 221 paragraph 1 StGB provides for imprisonment of up to five years or a fine. In particularly serious cases—such as when the victim dies as a result of the act or suffers serious health damage—the penalty is correspondingly increased (up to ten years imprisonment). The specific sentencing rules depend on the consequences and individual features of the offense.
Subjective element and culpability
For criminal liability, intent is required; the offender must be aware of the circumstances of the helpless situation and must wish to abandon or omit to act, or at least accept this. Gross negligence is not sufficient.
Examples and case law
Typical scenarios
- Parents or guardians: leave a small child unsupervised in a car during extreme heat
- Nursing staff: fail to properly care for a helpless patient and leave them, in breach of their duty of care
- Friends: leave an intoxicated, disoriented acquaintance outside in winter
Case law
The jurisprudence of the Federal Court of Justice and higher regional courts regularly specifies the requirements and distinguishing features, particularly concerning the guarantor position, the degree of endangerment assumed by the victim, and the extent of the duty of care.
Practical relevance and significance
The provision is of considerable practical importance, both in family life and in the field of care and supervision. Whenever a person is obliged to provide protection due to a special legal relationship and grossly disregards this duty, significant criminal sanctions are threatened.
Distinction from failure to render assistance
While in the case of failure to render assistance everyone is obliged to assist another in an acute emergency (provided there is no heightened risk to themselves), Abandonment in a helpless situation the offense requires a special close relationship or co-causation of the emergency.
Literature and further sources
- BeckOK StGB, Section 221
- Fischer, Criminal Code, Commentary, Section 221 StGB
- LK-StGB Section 221
The article provides a structured and comprehensive overview of the legal concept Abandonment in a helpless situation, highlights all essential criminal law aspects of the offense, and serves as valuable guidance for the legal lexicon.
Frequently asked questions
What are the criminal consequences of abandonment in a helpless situation?
Abandoning a person in a helpless situation is punishable in Germany under Section 221 of the Criminal Code (StGB). Criminal prosecution applies not only to persons who actively place another person in a helpless situation and then abandon them, but also to those who leave an already helpless person—due to accident, illness, or other circumstances—even though they have a special duty of care for that person. Penalties range from imprisonment of up to five years or a fine in less serious cases. If abandonment leads to a serious consequence, such as death or serious bodily harm, the penalties increase correspondingly up to ten years imprisonment. In addition to criminal sanctions, further consequences may include the revocation of driving licenses, professional bans, or claims for damages under civil law.
When does a helpless situation exist as defined by the Criminal Code?
A helpless situation legally exists when the affected person, due to minority, illness, old age, infirmity, unconsciousness, or other circumstances, is no longer in a position to help themselves or protect themselves from danger. The decision as to whether such a situation exists depends primarily on the specific circumstances of the individual case and is assessed by objective criteria. Legal relevance arises particularly when the person to be protected is dependent on help from third parties and cannot rescue themselves by their own efforts. The court must always examine whether there was in fact a state of defenselessness without external support.
Are there different ways of committing the offense of abandonment in a helpless situation?
Yes, the law basically distinguishes between two forms: First, actively bringing about the helpless situation and then abandoning the victim (so-called “active conduct”), and second, merely abandoning a person who is already helpless by someone who holds a guarantor position (“omission”). The guarantor obligation arises, for example, for relatives, supervisors, or others obliged by law, contract, or prior endangering conduct. A breach of the duty of care is punished just as severely as the deliberate creation and exploitation of a helpless situation.
Must unintentional actions also be prosecuted?
No, as a rule, criminal liability under Section 221 StGB requires intent. This means that the perpetrator must have acted at least with conditional intent, i.e., at least have accepted that the person left behind would be exposed to the risk of serious bodily harm or death. Carelessness, negligence, or unintentional conduct is not sufficient to fulfill the offense of abandonment in a helpless situation. In such cases, however, other criminal offenses, such as negligent bodily harm or manslaughter by omission, may be relevant.
What role does the age or illness of the helpless person play for criminal liability?
The age or pre-existing condition of the abandoned person is decisive because the need for special care and the objective helplessness can crucially depend on these factors. Particularly vulnerable are infants, elderly people, or those who are seriously ill, whose ability to help themselves is significantly restricted. Abandoning such persons is regularly considered particularly reprehensible and may result in more severe criminal prosecution. The court considers in each case whether and to what extent the person was actually helpless and whether the offender was aware of this or should have been.
How do abandonment in a helpless situation and failure to render assistance differ?
Both criminal offenses overlap to some extent, but differ in key respects: while abandonment in a helpless situation requires a specific personal relationship between the offender and the victim (e.g., a guarantor obligation) or the offender placing the victim in the helpless situation themselves, failure to render assistance (Section 323c StGB) is a so-called general offense that applies to any person who fails to help in an emergency when it would have been reasonable to do so. The penalty range for abandonment in a helpless situation is significantly higher, but the requirements are more narrowly defined.
Can organizations or legal entities also be held liable?
Legal entities, such as care facilities or daycare centers, cannot themselves be criminally prosecuted, since criminal law in Germany generally applies to natural persons. However, individual persons responsible, such as managers or supervisors, can be held accountable if they breach their supervisory duties and leave a person in their care in a helpless situation. Under certain circumstances, administrative proceedings under the OWiG can also be initiated against the legal entity, which may result in substantial fines.
