Definition and meaning of the term ‘abuse’
In the legal context, abuse refers to an intentional or negligent act that impairs or endangers the physical or emotional well-being of a person. The term is complex and is used particularly in criminal law, family law, and various protective statutes. The exact legal classification and the consequences of abuse depend on the relevant area of law and the protective purpose of the respective legal provision.
Abuse in criminal law
Abuse as defined by the Criminal Code (StGB)
Under German criminal law, abuse is particularly relevant in connection with bodily injury (§ 223 StGB), abuse of persons under care (§ 225 StGB), and other offenses such as abuse of animals (§ 17 Animal Welfare Act).
Bodily injury (§ 223 StGB)
Physical abuse alone constitutes bodily injury under § 223 StGB. Physical abuse is understood as any malicious, inappropriate treatment that more than insignificantly impairs physical well-being. This includes blows, kicks, inflicting cuts or stab wounds, but also other forms of physical pain.
Abuse of persons under care (§ 225 StGB)
Particular protection is given to those under special care, such as children or dependent individuals. Under § 225 StGB, anyone who physically or emotionally seriously harms such a person through abuse, or who willingly accepts significant risks to their development, is liable to prosecution. The following actions in particular are considered offenses:
- Use of physical force
- Cruel treatment involving significant infliction of pain
- Neglect of the duty of care or upbringing responsibility
The provision covers both active acts of violence and the intentional failure to provide care.
Abuse in other areas of law
Protection Against Violence Act
The Protection Against Violence Act (GewSchG) protects individuals from abuse in private spheres, in particular domestic violence. It grants protective orders against offenders, such as restraining or contact bans, to protect victims from further acts of abuse.
Family law
In family law, abuse plays a significant role in custody disputes and child protection. According to the Civil Code (BGB), the family court can take measures if a child’s welfare is endangered by physical or emotional abuse. Measures range from orders to the complete withdrawal of parental custody (§ 1666 BGB).
Employment law
Abuse can also be an issue in employment law, for example regarding protection from bullying or assaults in the workplace. Employers are required to protect their employees from discrimination and physical or emotional abuse.
Abuse as an element of an offense
Objective elements of the offense
In criminal law, it is important that the act impairs physical or emotional well-being. The intensity, duration, and nature of the impact play a significant role in its legal assessment. For persons under care, it is also relevant whether the abuse leads to a concrete danger or significant harm to development.
Subjective elements of the offense
Intentional abuse requires that the perpetrator is aware that their act or omission will impair the victim’s well-being. Negligence is generally not sufficient, unless the relevant provision also covers negligent conduct. In the case of abuse of persons under care, conditional intent is also punishable.
Criminal consequences and sanctions
The penalty for abuse depends on the relevant offense. In addition to fines, serious cases may lead to imprisonment, for example abuse of persons under care ranging from six months to ten years. In cases of repeat offenses or severe injury consequences, penalties are increased. Professional consequences and family law measures may also arise as a result of abuse.
Abuse in international conventions
International agreements such as the UN Convention on the Rights of the Child and the European Convention on Human Rights require member states to protect children and other vulnerable persons effectively from abuse and to take corresponding legal and practical measures. Implementation of these obligations is the subject of national legislation.
Distinction from other legal terms
Negligent bodily injury
Negligent acts that do not involve intent fall under the offense of negligent bodily injury (§ 229 StGB), but must be distinguished from intentional abuse.
Abuse vs. neglect
Abuse must be distinguished from neglect, though both play a role in endangering a child’s welfare. Abuse refers to active harmful acts, while neglect involves the failure to provide care and protection.
Victim rights and protection mechanisms
Victims of abuse are entitled to comprehensive protective measures and support services. These include:
- Criminal complaints and rights as a private accessory prosecutor
- Victim compensation under the Victim Compensation Act (OEG)
- Access to counseling, therapy, and psychosocial trial support
- Option to apply for protective orders under the Protection Against Violence Act
Limitation periods and reporting
The offenses of abuse are subject to different limitation periods. For abuse of persons under care, the limitation period often does not begin until the victim reaches adulthood. A criminal complaint can generally be filed at any police station or public prosecutor’s office.
Summary
The legal term ‘abuse’ covers a wide range of physical and psychological interferences with a person’s well-being and integrity. The legal consequences vary according to the severity, the affected group, and the relevant area of law. The aim of these regulations is always the protection of physical and mental integrity, as well as effective sanctioning of unlawful conduct. International obligations and national laws ensure comprehensive protection and consistent prosecution of abuse offenses.
Frequently asked questions
How can abuse be legally proven?
Proof of abuse in the legal sense is furnished with a variety of evidence, always subject to the principle ‘in dubio pro reo’ (when in doubt, for the accused). Typical evidence includes medical reports that provide objective findings about injuries and their possible causes. Witness testimonies, for example from neighbors or third parties, also play a major role. The victim’s account, as long as it is consistent and credible, is also considered in court but often needs to be supported by further circumstantial evidence. Photographs of injuries, video footage (such as surveillance cameras), and, if applicable, audio recordings can also be used as evidence. In family court proceedings, reports from the youth welfare office and other involved agencies are relevant. The courts assess all this evidence freely and also consider possible motives for false statements as well as the overall circumstances of the individual case.
What penalties may be imposed for confirmed abuse?
Criminal law distinguishes between different forms of abuse, for example dangerous bodily harm (§ 224 StGB), abuse of persons under care (§ 225 StGB), and further offenses such as simple bodily injury (§ 223 StGB). The penalties vary according to the severity of the case. For simple bodily injury, a prison sentence of up to five years or a fine may be imposed. Abuse of persons under care is punishable by imprisonment from six months to ten years, or in less serious cases from three months up to five years. Factors such as repeated, ongoing, or particularly severe abuse increase penalties. Depending on individual culpability and the circumstances of the case, the court may also impose suspended sentences, conditions, or additional penalties.
Who is considered ‘under care’ according to the law?
Legally, persons are considered ‘under care’ if they have a special relationship of dependency with another person. This specifically means: anyone who is a minor and requires upbringing, care, or custody is considered under care. This applies to children towards parents, foster parents, teachers, educators, or other caregivers. Likewise, adults who are helpless due to mental or physical impairments fall under this category, provided they are in a comparable legal relationship to the caregiver. The legal definition is found in § 225 StGB and is based on actual living circumstances and the degree of dependence in the individual case.
What are the limitation periods for offenses of abuse?
The limitation periods for abuse offenses depend on the potential penalty according to the relevant section of the StGB. The limitation period for simple bodily injury (§ 223 StGB) is five years, for abuse of persons under care (§ 225 StGB) it is ten years. For acts punishable by more than ten years’ imprisonment (for example, particularly serious cases or if death has resulted), the period can increase to twenty years. It is also important that for minors, the limitation period does not begin to run until the victim turns 18, provided the victim was not yet of legal age at the time of the offense (§ 78b(1) no. 1 StGB).
Can abuse be punishable even if there are no physical traces?
Yes, abuse may be punishable even without visible physical traces. German criminal law covers not only physical but also psychological abuse, provided it can be proven that serious health damages have resulted, for example in the form of post-traumatic stress disorder, anxiety, or other mental illnesses. The decisive factor is that the effect on the victim is capable of causing significant harm. However, such cases are more challenging to prove, as they usually rely on psychological expert reports and the victim’s and other witnesses’ accounts. Jurisprudence requires a detailed description of the psychological health impairments caused and their causality with the act.
What is the role of the youth welfare office when abuse is suspected?
The youth welfare office is obliged under § 8a SGB VIII to investigate any endangerment to a child’s welfare in cases of suspected abuse. If there are indications of violence, abuse, or neglect, the youth welfare office conducts a risk assessment and can take appropriate measures to protect the child. This ranges from discussions with those involved to initiating family court protective measures. The youth welfare office is also responsible for informing the family court if immediate action is needed. In criminal cases, the youth welfare office often works closely with the police and public prosecutor, provides reports for proceedings, and supports affected children and their families.
Are there special protective measures for victims during criminal proceedings?
Yes, victims of abuse offenses are entitled to extensive protective measures in criminal proceedings. These include, for example, the so-called witness protection program, the possibility of giving evidence by video link (§ 247a StPO), and holding the main hearing behind closed doors (§ 172 GVG). In the case of minors or especially vulnerable witnesses, the court can also exclude the defendant from the courtroom during their testimony (§ 247 StPO). Victims can additionally claim psychosocial trial support and act as private accessory prosecutors, giving them broader rights in the criminal process, such as access to files and the right to question. These measures are intended to protect against retraumatization and to uphold personal integrity during proceedings.
