Definition and Classification: Public Causing of a Nuisance
The term ‘Public Causing of a Nuisance’ is a concept from German criminal law, regulated in Section 183a of the German Criminal Code (StGB). It constitutes an independent criminal provision and serves to protect the general public from morally offensive conduct in public spaces. The threat of punishment aims to prevent public life from being disturbed by grossly improper acts or the moral sensibilities of the public from being violated.
Legal Basis: Section 183a StGB – Wording and Elements of the Offense
Text of the Law
Section 183a StGB reads:
“Whoever commits a grossly improper act that is likely to cause a public nuisance shall be punished with imprisonment of up to one year or a fine, provided that the act is not subject to a more severe penalty under other provisions.”
Elements of the Offense
The following elements can be derived from the wording of the law:
- Grossly improper act
This covers behaviors that are generally regarded as highly immoral or offensive to decency, but which are not already covered as exhibitionist acts (Section 183 StGB) or under other specialized provisions of the StGB.
- Potential to cause public nuisance
The act must, by its nature, be suitable to arouse justified public indignation in others—in other words, to provoke disapproval or outrage.
- Public sphere
The act must be performed in such a way that it can be perceived by a number of people or, at the very least, is objectively capable of being noticed by the general public.
- Subsidiarity clause
Section 183a StGB is subsidiary and recedes when other provisions prescribe harsher penalties, such as for sexual harassment, insult, or similar offenses under other laws.
Distinction from Similar Criminal Offenses
Difference from Section 183 StGB (Exhibitionist Acts)
Exhibitionist acts under Section 183 StGB specifically refer to exposing acts before others, which relate to the genitals and are explicitly committed by men. Section 183a StGB, on the other hand, also covers other grossly improper but not gender-specific exhibitionist behaviors.
Difference from Regulatory Offenses
Not every nuisance to the public through improper conduct exceeds the threshold of criminality. Many cases are prosecuted as administrative offenses under Section 118 OWiG (Nuisance of the Public) if the act is not sufficiently egregious or is merely of minor social significance.
Relation to Domestic Rights and Privacy
Acts that occur exclusively in private spaces and have no public visibility generally do not fall under this provision. Public accessibility is required, so purely private conduct, even if it could be considered offensive by third parties, is not punishable.
Case Law and Interpretation
Grossly improper acts – Examples
According to case law, examples of grossly improper acts include:
- Performing offensive sexual acts in public places (such as sexual intercourse in public, provided Section 183 StGB is not already fulfilled)
- Defecating or urinating in full public view (provided it is not a regulatory offense)
- Displaying obscene gestures or acts relating to intimate areas
- Insulting or degrading conduct in public
Public Perceptibility
Criminal liability does not require that a large number of people actually observe the act; the objective possibility of perception by the public or an undefined larger group of people is sufficient.
Sentencing and Legal Consequences
Penalty
If the elements of the offense are fulfilled, a prison sentence of up to one year or a fine may be imposed. The severity of the penalty depends on the gravity of the act, the level of disturbance, and individual circumstances (such as prior convictions, motive, or remorse).
Attempt and Participation
Attempted commission of Section 183a StGB is generally not punishable, as it constitutes an offense for which attempted acts are not explicitly criminalized. However, incitement and aiding in the completed offense are generally punishable.
Significance and Practical Relevance
Areas of Application in Practice
Measured by the number of criminal investigations, Section 183a StGB is of lesser importance today. Its primary function is to supplement legal protection when other relevant criminal offenses do not apply, yet social order is still significantly disturbed.
Examples from practice include cases in which people perform grossly offensive acts during events, in public squares, or during demonstrations.
Criticism and Debate
In legal scholarship, the offense is sometimes criticized for being too vague and for granting significant discretion to law enforcement authorities. The boundaries between social tolerance and punishable conduct are subject to change, so that an individual and evaluative approach is always required.
Reforms and Outlook
Legal Developments
The current version of Section 183a StGB was restricted and modernized in 1973 as part of the first reform of sexual criminal law, with the aim of covering a remaining core area of criminally relevant immoral offenses.
Perspective for the Future
In view of the increasing tolerance towards various lifestyles and forms of conduct in public, Section 183a StGB is regularly subject to scrutiny. A complete abolition or further clarification of the offense is being discussed by some academics and members of civil society.
Summary
The ‘Public Causing of a Nuisance’ pursuant to Section 183a StGB is a subsidiary offense aimed at protecting the public from grossly improper acts in public spaces. Its purpose is to fill gaps in criminal law where other provisions cannot be applied, and to protect the general sense of decency. In practice, the offense plays a minor role, but remains an important fallback in cases of offensive public conduct. Its exact application and scope are largely determined by societal values and current developments in public life.
Frequently Asked Questions
What requirements must be met for criminal liability under Section 183a StGB (‘Causing Public Nuisance’)?
Several requirements must be met for criminal liability under Section 183a StGB. First, the act must be carried out in an exhibitionist or otherwise grossly improper manner. This means that the conduct is either an exhibitionist act in the sense of indecent exposure of the genitals, or another similarly grossly offensive act. The behavior must also be suitable to cause public nuisance among uninvolved third parties; this is always the case if, objectively, a violation of the public’s sense of decency has occurred. Furthermore, the act must be committed ‘publicly’, that is, it must be capable of being perceived by a not insignificant number of people, though actual observation by third parties is not strictly necessary. The offense does not require actual success in the sense of provoking outrage; the mere suitability to cause offense suffices. Intent is required with respect to all objective elements of the offense; negligence is not punishable.
What penalties can be imposed for a conviction of public causing of a nuisance?
A conviction under Section 183a StGB generally carries a penalty of up to one year of imprisonment or a fine. The court can determine the penalty within this framework, considering in particular the extent of the disturbance, any prior convictions, the motive, and the perpetrator’s conduct after the offense. In the case of a first-time offender or a less serious act, a fine may suffice. In cases of relevant prior convictions or particularly serious or persistent conduct, a prison sentence may be imposed, which may, under certain circumstances, be suspended on probation.
When is conduct considered ‘public’ for the purposes of Section 183a StGB?
Conduct is considered ‘public’ if it takes place in a location where it can be perceived by an unspecified number of people. It is not necessary that a large crowd actually witnesses the behavior; it is sufficient that the opportunity for perception exists. Public spaces include streets, squares, parks, public transportation, but also generally accessible buildings. If, for example, someone commits an act in an unenclosed garden that is visible from the sidewalk, this is also considered public. Conduct carried out only in a private, enclosed setting does not meet the element of publicness.
Are there exceptions in which offensive behavior is not punishable?
Yes, there are situations in which conduct that may seem offensive to others does not result in criminal liability under Section 183a StGB. In particular, there is no liability if the act takes place in a non-public, purely private context. Likewise, if the behavior is accepted by social conventions or is customary in certain contexts (such as at nude beaches or designated nudist zones), criminal liability is precluded due to the lack of gross impropriety or publicness. Moreover, the crime of ‘causing public nuisance’ only arises when the conduct exceeds the ordinary level of disturbance and objectively, the public order is significantly impaired.
What are the differences between Section 183a StGB and exhibitionist acts under Section 183 StGB?
Section 183 StGB traditionally punishes exhibitionist conduct, that is, the intentional exposure of the genitals before another person with the purpose of sexual arousal or gratification. By contrast, Section 183a StGB does not require sexual motivation and includes, in addition to exhibitionist acts, other grossly offensive behaviors in public. While Section 183 can only be committed by men, Section 183a is gender-neutral. The punishments also differ, and the interests protected by each offense are not entirely the same, with Section 183a focusing on public peace and the moral sensibilities of the public.
Does the nuisance actually have to be caused for criminal liability to arise?
No, criminal liability under Section 183a StGB does not require an actual result in the form of causing a public nuisance. It is sufficient that the act is objectively suitable to provoke public outrage among others. In other words, it is enough if, according to prevailing social views, the behavior is seen as grossly offensive and likely to seriously violate the moral sensibilities of an average third party. The subjective feelings of individual persons are irrelevant.
What role does the subjective element of ‘intent’ play in causing a public nuisance?
Intentional conduct is required under Section 183a StGB. The perpetrator must know all the objective elements of the offense, especially the public nature and the gross impropriety of the act, and at least accept them. A mistake regarding whether the act is public can eliminate intent, for example, if the offender believes they cannot be observed. If intent is lacking—such as if the act is committed unintentionally or out of gross negligence—Section 183a StGB does not apply, as it does not cover negligent conduct.
