Term and Legal Definition of Intercourse
The term ‘Beischlaf’ is a central legal concept in German criminal law as well as civil law and typically refers in the legal context to vaginal, genital-to-genital sexual intercourse between two persons. While the term “Beischlaf” is used less frequently in everyday language and is increasingly replaced by more neutral expressions such as “sexual intercourse,” it continues to have a precisely defined and significant legal meaning for certain criminal offenses and legal consequences.
The following article comprehensively explains the various legal aspects of Beischlaf, distinguishes the term from related sexual acts, and highlights the key legal contexts in which Beischlaf plays a role.
Substantive Meaning in Criminal Law
Distinction from Other Sexual Acts
Im Criminal Law the precise definition of Beischlaf is essential, as various offenses specifically refer to this circumstance. Even earlier versions of §§ 177 et seq. of the German Criminal Code (StGB) differentiated between ‘Beischlaf’ and other sexual acts. According to traditional legal interpretation, Beischlaf only occurs when there is penetration of the male penis into the female vagina. Orgasm or ejaculation is not required, nor does a completed sexual act have to be achieved—the attempt at penetration may suffice.
With reforms in sexual criminal law, especially since the revision in 2016, the term in statutory text has increasingly been replaced by broader concepts such as ‘sexual act’, yet remains relevant for interpreting previous offenses.
Offenses in the Criminal Code
In the following offenses, Beischlaf has particular significance:
- Rape (Section 177 old version StGB): Under earlier law, Beischlaf was explicitly mentioned, thereby excluding, for example, oral or anal contact; these were considered merely ‘other sexual acts’. The reform of sexual criminal law lifted the focus on Beischlaf from the law’s text, expanding protection to all relevant sexual acts.
- Sexual Abuse of Persons in Care (Section 174 StGB): Here too, the previous distinction between Beischlaf and other acts before 1998 was relevant.
- Sexual Abuse of Children (Section 176 StGB): Sentencing distinguishes between qualifying circumstances, in which Beischlaf (as ‘Beischlaf act’ or ‘completion of Beischlaf’) leads to significantly increased penalties.
- Serious Sexual Coercion and Abuse (§ 177, § 178 StGB): Here, in cases of abuse involving ‘Beischlaf’, the offense is considered particularly severe, often resulting in a higher minimum penalty.
Sentencing and Legal Consequences
If Beischlaf is committed under the respective statutory offenses, stricter penalties regularly result, often with a minimum sentence or higher maximum penalty. A typical example is the rule in Section 176b (1) StGB (qualifying circumstance in cases of Beischlaf with children), where the penalty prescribes at least two years’ imprisonment.
Civil Law Significance of Beischlaf
Beischlaf in Marriage and Partnership
Im Family Law Beischlaf plays a role regarding marital duties and establishing paternity. While the ‘right to Beischlaf’ as part of marital obligation is no longer an enforceable duty in modern law, such circumstances were historically discussed. Beischlaf remains legally significant for the following areas:
- Establishment of Paternity: The legal presumption of the husband’s paternity exists if, during the marriage, Beischlaf is likely according to the circumstances of the individual case.
- Annulment and Nullification of Marriage: In rare cases, the total absence of marital Beischlaf may constitute grounds for annulment, particularly in ‘marriages under mistaken identity’ regarding gender or impotence (see § 1314 BGB).
Medical Law, Social Law, and Other Contexts
Medical Legal Issues
Beischlaf can be relevant in connection with medical legal issues for example, regarding duties to inform about contraception methods or in the context of damages claims following misinformation about pregnancy risks.
Insurance-Related Aspects
Im Insurance Law actions in connection with Beischlaf may be relevant, e.g., in private damage events if health consequences, such as in cases of transmission of infections, become insurance-relevant.
Case Law on Beischlaf
Key Leading Decisions
The interpretation of the term Beischlaf and its criminal law relevance has repeatedly been the subject of supreme court case law:
- The Federal Court of Justice (BGH) has specified in various judgments that even penetration of the penis into the vagina, regardless of degree or duration, is considered Beischlaf (BGHSt 6, 229).
- Even an attempted penetration may—depending on the circumstances—suffice as (attempted) Beischlaf (BGH NStZ 1994, 507).
- Other acts, particularly oral-genital or anal-genital contact, although of sexual connotation, were traditionally not subsumed under the term Beischlaf, but rather as ‘sexual acts of comparable intensity’.
Development of Case Law
With the evolution of sexual criminal law and its extension to all sexual acts, the specific term Beischlaf is relevant today primarily when interpreting and applying older provisions as well as in statute of limitation questions for offenses.
Term History and International Comparisons
Development in German Law
The term comes from older legal systems and was firmly anchored for many years in German criminal and civil law. Its significance has been increasingly relativized by social and legal changes in sexual criminal law and is now almost entirely replaced in modern statutes by gender-neutral and broader terms.
Comparison Abroad
In international legal comparison (e.g., Austrian or Swiss law), distinctions are likewise made between traditional Beischlaf and other sexual acts, often with different criteria and sentencing.
Summary and Significance in Current Legal Practice
The term Beischlaf has had and continues to have a complex meaning in German law. While the current trend is toward broader, gender-neutral terminology, the precise distinction of Beischlaf remains relevant for interpreting older provisions, sentencing, limitation periods, and the jurisprudence in family and criminal law. In all contexts, Beischlaf as a legal term is strictly defined and differentiated from other sexual acts, which regularly requires interpretation and judicial clarification.
Frequently Asked Questions
What legal provisions apply to consensual intercourse between adults?
Consensual Beischlaf between adults is generally permitted in Germany provided both persons are of legal age and have given express or implied consent. German criminal law, particularly § 177 StGB, ensures that sexual contact is only lawful with valid consent. Without consent, a punishable offense—typically in the form of sexual coercion or rape—exists. There are also special regulations to protect particularly vulnerable persons, such as residents of institutions or patients (§ 174c, § 174b StGB). The right to private autonomy also extends to the sexual life of adults as long as no other laws, such as the ban on certain practices like violent pornography, are violated.
When is Beischlaf punishable due to lack of legal capacity or capacity to consent?
Beischlaf becomes punishable if one of the persons involved lacks capacity to consent. Capacity to consent requires that the person recognizes the meaning and scope of the act and can act autonomously. For example, those who are permanently mentally impaired, temporarily intoxicated, or unconscious cannot consent validly under German law (§ 177 (2) no. 1 StGB). Sexual acts in such situations regularly constitute sexual offenses, with legislators placing special emphasis on protecting helpless or impaired persons.
What age limits must be observed with Beischlaf?
The age of protection in German sexual criminal law is legally regulated. According to § 182 StGB, Beischlaf with persons under 14 years of age is always punishable (sexual abuse of children, § 176 StGB). Between 14 and 16 years old, Beischlaf is not generally forbidden, but punishable if there is a relationship of dependency or exploitation or if adults induce a person under 16 to sexual acts for payment. From age 16, persons may generally have sexual relations with other adults provided no dependency exists. The protection of juveniles is supplemented by additional provisions, such as those prohibiting sexual exploitation or abuse of persons in care.
What legal consequences may result from non-consensual Beischlaf?
Non-consensual Beischlaf constitutes a criminal offense in Germany, prosecuted in particular as rape or sexual coercion (§ 177 StGB). Legal consequences range from several years’ imprisonment to possible preventive detention in serious cases. In addition, the perpetrator faces civil law claims for damages and compensation for pain and suffering, as well as collateral legal consequences such as prohibition of certain professional activities, residence and contact bans, and entry into the sex offender registry (certificate of conduct).
Is marriage a special legal context for Beischlaf?
Until the reform of sexual criminal law in 1997, Beischlaf within marriage was a special case, rated as a ‘marital duty’ and treated differently under criminal law. Today, the basic principle is: every sexual act must also be consensual within marriage. Rape in marriage is punishable just as it is outside of marriage; there are no special rights or exceptions anymore (§ 177 StGB). The right to sexual self-determination applies fully to spouses, so coercion or pressure always constitutes a criminal offense.
How does the law regulate Beischlaf in relationships of dependency or care?
Sexual acts between adults are punishable under criminal law if a relationship of dependency exists (§ 174 StGB: sexual abuse of persons in care). This includes care, training, or supervision relationships where a special position of trust or authority is exploited. The legislator regards such scenarios as particularly sensitive because the consent of the person in care may not be freely given due to the existing power imbalance. Offenders must reckon with considerable criminal consequences, even if there was formal consent.
Are there legal implications for Beischlaf in connection with prostitution?
Beischlaf in connection with prostitution is legal in Germany, provided that both parties are of legal age and the prostitution is voluntary (§ 1 ProstSchG). The Prostitute Protection Act regulates, among other things, health precautions, registration, and contract aspects. Illegal, and therefore punishable, is the promotion of prostitution of minors (§ 180a StGB) or human trafficking for the purpose of sexual exploitation (§ 232 StGB). All forms of forced prostitution are equally prohibited. Customers also have duties of cooperation, such as verifying the age and consent of prostitutes.
