Summary

The recent amendment to the Penal Code that entered into force on 23 December 2013, repealed the penal provision on satisfaction of sexual desire by violence (§ 142). The disposition of §142 of the Penal Code was added in an unchanged form to the constitution of rape – § 141 of the Penal Code. By this legislative readjustment, the legislator significantly broadened the scope of § 141 of the Penal Code. Being quite abstract and worded vaguely, the legislator has left the constitution of rape to be largely furnished by legal dogmatic and case law.

The article views the constituent elements of § 141 of the Penal Code that the author finds the most problematic in terms of interpretation. Thus, we first address the helpless situation in case law and through that, also situation-based helplessness or the vulnerable situation coined in legal literature, and secondly, the concept of an act of a sexual nature. The sub-topics thus address both forceful and sexual acts that form a constitutive part of rape as a forceful sexual act. The article seeks ways of interpreting the constituent elements of rape, using mainly German penal law for assistance.