Term and Meaning of ‘Beiwohnung’
Die Beiwohnung is a historical and legal technical term that is particularly significant in German criminal and civil law. Traditionally, Beiwohnung is understood to mean sexual intercourse between two people. In the legal context, the definition of Beiwohnung is of special relevance, as numerous criminal provisions, especially those aimed at protecting sexual self-determination, depend on the existence of Beiwohnung. The precise interpretation of this term is therefore crucial for the legal evaluation of certain actions.
Historical Legal Development
Historical Roots
As early as the Middle Ages and the early modern period, Beiwohnung was an established legal term. It played a central role in marriage and criminal law, especially in offenses such as adultery, fornication, and moral offenses. The definition was usually based on the existence of what was called Beischlaf, that is, consummated vaginal intercourse with penetration.
Change in Legal Understanding
Over time, the legal significance of Beiwohnung was modified and, in modern law, has been replaced or supplemented by more differentiated terms such as “sexual act” or “Beischlaf.” Nevertheless, Beiwohnung is still referenced in historical legal texts and court decisions.
Beiwohnung in Criminal Law
Criminal Law Regulation
In German criminal law, the term Beiwohnung was especially used in the following statutory regulations:
- Sex Offenses: For example, in the regulations of §§ 174 et seq. StGB (sexual abuse, rape, aggravated sexual coercion up to legislative reforms in recent decades). Here, if the element of ‘Beiwohnung’ was present, the most serious variants were assumed.
- Morality Offenses: Historical criminal offenses such as incest, sodomy, or homosexual acts were sometimes explicitly linked to Beiwohnung as a requirement.
Definition in Case Law
According to general consensus among many courts and legal scholars, Beiwohnung is fundamentally equated with vaginal sexual intercourse, with penetration, i.e., the insertion of the male penis into the female vagina, being sufficient; ejaculation is not required. Other sexual acts, such as anal or oral penetration, were assessed differently depending on the legal situation and period, and were not always classified as Beiwohnung.
Distinction from Other Sexual Acts
In current criminal law, Beiwohnung is defined increasingly narrowly and is distinguished from other “sexual acts of significant importance” (§ 184h para. 1 StGB), which can also include anal or oral contacts, masturbation, or other sexual assaults.
Significance for Sentencing
The existence of Beiwohnung significantly increased the penalty in various criminal offenses, as it is considered a particularly severe infringement of the legal interest of sexual self-determination and bodily integrity. In cases of rape, Beiwohnung was long considered the distinctive feature of the particularly serious form of the offense.
Beiwohnung in Civil Law
Marriage and Family Law
In historical marriage and family law, Beiwohnung was considered a constitutive element of marriage. The marriage was only regarded as consummated once the first Beiwohnung had taken place. This was decisive, for instance, for the validity and indissolubility of the marriage in canon law.
Law of Descent
In the law of descent, Beiwohnung was decisive for the legal assessment of paternity. The presumption of legitimacy was linked (among other conditions) to the period during which Beiwohnung between the spouses was possible. In paternity proceedings, the existence or absence of Beiwohnung was also considered.
Beiwohnung in International Legal Comparison
Austria
Austrian criminal law recognizes the term Beiwohnung particularly in older legal texts. It was crucial in substantiating certain sexual offenses but was later replaced by broader terms.
Switzerland
In Swiss criminal law, Beiwohnung is mainly mentioned in historical contexts. The revised versions also now rely on broader definitions of sexual acts.
Other Legal Systems
In other German-speaking countries, the term Beiwohnung has been replaced or specified by terms such as sexual act, Beischlaf, or others.
Current Significance and Application
Statutory Developments
With the reforms of sexual criminal law, the rigid differentiation based on Beiwohnung has been increasingly abandoned. Current criminal provisions protect more broadly defined legal interests and cover various sexual assaults and violations of sexual self-determination regardless of Beiwohnung.
Judicial Interpretation
Courts still refer to the definition of Beiwohnung in individual cases, especially when older criminal offenses are applied or in the context of interpreting transitional and legacy cases. However, the current criminal law assessment primarily focuses on the overall consideration of the sexual act.
Literature and Legal Sources
- Criminal Code (StGB) in its current version
- Legislative history of sexual criminal law
- Commentary literature on sexual offenses
- Historic judgments and legal materials concerning marriage law
Summary
Beiwohnung is a traditional term, particularly relevant in German law, which historically and systematically provided the basis for evaluating certain sexual and marital offenses as well as civil law effects of marriage. Due to societal and legal developments, the meaning of this term has changed in the current law, but knowledge of it remains essential, particularly for interpreting older statutes and legal history.
Frequently Asked Questions
Who is particularly protected by the prohibition of Beiwohnung in the legal sense?
The legal protection provided by the prohibition of Beiwohnung relates especially to minors, vulnerable individuals, and, depending on national legislation, particularly defenseless persons. In German criminal law, this protection is provided in §§ 174 et seq. StGB, with particular reference to children and adolescents under 14 years of age and, in certain cases, persons under 18 as being especially in need of protection. In addition, people with mental or physical disabilities are included within the scope of protection if, due to their condition, they are unable to resist or comprehend a sexual assault. The primary focus is always on the protection of sexual self-determination, with increased penalties applying when an abuse of a relationship of authority exists—such as by teachers, psychologists, or doctors—or when the victim is under the care or supervision of the perpetrator.
What legal consequences does the Criminal Code provide for prohibited Beiwohnung?
The Criminal Code orders considerable penalties for prohibited Beiwohnung, which are primarily oriented towards the protective purpose of the provision. In Germany, depending on the specific offense, sentences range from imprisonment for not less than one year to several years, possibly with subsequent preventive detention. Especially in cases of sexual offenses against children or adolescents, offenders may face severe consequences, such as lengthy prison terms, professional bans in educational fields, or inclusion in the sex offender registry. There are also civil law consequences, such as cease-and-desist claims or claims for damages by the victim, as well as family law consequences, e.g., loss of custody rights.
Are there statutes of limitations for the criminal prosecution of Beiwohnung?
Yes, most sexual offenses, including prohibited Beiwohnung, are subject to statutes of limitations, but these can vary significantly depending on the time of the offense, the victim’s age, and the severity of the offense. Several legislative changes have extended these periods: For example, for many sexual offenses against children, the limitation period only begins when the victim reaches the age of 30. The actual limitation depends on the expected penalty, usually between 10 and 30 years; for especially serious offenses, such as aggravated sexual abuse of children, prosecution may be not subject to limitation.
To what extent is intent required for criminal Beiwohnung?
In principle, in criminal law, at least conditional intent is usually required to fulfill the offense of Beiwohnung, meaning the perpetrator must at least consider the act possible and accept it. In certain exceptional circumstances, gross negligence may suffice for a criminal act, for example if the perpetrator falsely assesses the victim’s age due to not sufficiently inquiring about it. In cases where the perpetrator can prove he could not, even through negligence, have recognized the age or protected status of the victim, criminal liability is usually excluded.
What impact can a criminal Beiwohnung have on family law?
A criminal Beiwohnung can lead to far-reaching family law consequences, especially in the context of family relationships. For example, custody may be fully or partially withdrawn from a parent or guardian who has committed an offense against the child. Contact and residence rights may also be significantly restricted or excluded. Furthermore, in custody proceedings, a criminal conviction for Beiwohnung is an important and regularly decisive factor for family court decisions—always with the aim of providing the best possible protection for the child.
Does a criminal penalty also exist for attempting Beiwohnung?
Yes, the Criminal Code stipulates in many cases that even the attempt at Beiwohnung is punishable. Especially for sexual offenses, the attempt is already declared punishable as soon as the perpetrator, according to his understanding of the act, takes concrete steps toward its execution, regardless of whether the act is completed. The penalty for the attempt may be lower than for the completed offense but is still regularly considered serious in order to have a preventive and deterrent effect.
Does the law differentiate between various forms of Beiwohnung with respect to sentencing?
Yes, the law does distinguish based on age, dependency, use of force, and the specific extent of the sexual assault. In particularly serious cases—such as rape, use of violence, exploitation of a dependency relationship, or involvement of multiple perpetrators—minimum and maximum penalties are regularly increased significantly. If there is ‘only’ a sexual assault without penetrative acts or without the use of force, the sentence is generally lower but still considerable. Repeat offenses or especially vulnerable victims may also be factors that increase the penalty.
Are consensual sexual acts with minors always punishable under the rules regarding Beiwohnung?
Not every consensual sexual contact with a minor is necessarily punishable; criminal law provides for age limits as well as special protection age rules. In Germany, the age of protection is 14 years, meaning sexual acts with or by children under that age are always punishable—regardless of consent. For adolescents between 14 and 18, if there is no coercion, violence, or abuse of dependency and only a minor age difference exists, criminal relevance may be negated. However, as soon as a dependency exists or the age difference exceeds five years, the criminal provisions regarding Beiwohnung are applied more strictly.
