In Austrian criminal law, rape and sexual assault are two very serious criminal offenses that constitute a massive violation of the victim's sexual self-determination. These offenses are regulated in §§ 201 and 202 of the Criminal Code (StGB). This blog post explains the difference between rape and sexual assault, sets out the legal framework and shows what penalties offenders can expect if convicted.
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Rape is one of the most serious sexual offenses and represents a massive violation of sexual self-determination. § Section 201 StGB describes rape as the coercion of another person to tolerate "sexual intercourse" or an "equivalent sexual act", whereby the coercion takes place through violence, threats or the exploitation of a present danger to life or limb.
What does "coitus" and "equivalent sexual act" mean?
In the legal sense, "coitus" refers to the
penetration of the female genitalia by the male member, i.e.
vaginal penetration. However, other sexual acts can also constitute
rape if they are comparable in extent and humiliation to
sexual intercourse. These include, for example, oral, anal or
vaginal penetration using fingers, tongue or objects. Rape
is not only possible with female victims. Men can also be
victims of rape and women can be perpetrators.
Important note: The physical impact on the
victim does not necessarily have to cause pain or be so intense that
it makes the victim's resistance "impossible". Even the initiation of
penetration or touching the genitals can be regarded as completion of the offense
. The decisive factor is the severity of the interference with the victim's sexual
self-determination and the extent of the humiliation.
When does a previous conviction for illegal use of addictive substances appear on the criminal record?
In the case of rape, coercive means such as violence, threats or the exploitation of a present danger to life or limb must be present. These means force the victim to submit to the sexual act even though they do not want to do so voluntarily.
- Violence against a person: This is physical violence used against the victim to break their resistance.
- Deprivation of personal liberty: The victim's freedom of movement is so severely restricted that they have no way of resisting or escaping.
- Threat of imminent danger to life or limb: This includes threats that put the victim in fear so that they believe they are in danger.
The intensity of the physical impact does not necessarily have to completely break the victim's resistance, but it may be sufficient to force the victim to tolerate the sexual act. There is no coercion if the victim consents to the act (sexual intercourse or equivalent sexual act). Consent can be withdrawn at any time. Contradictory consent is not to be regarded as consent.
Punishment for rape
Rape is punishable under Austrian criminal law with a prison sentence of 2 to 10 years. In particularly serious cases, such as particularly serious bodily harm or particular humiliation of the victim or if the rape results in pregnancy, the penalty is 5 to 15 years' imprisonment. If the crime results in the death of the victim, a prison sentence of 10 to 20 years is to be expected.
Sexual assault according to § 202 StGB
Sexual coercion is a criminal offense that is also directed against sexual self-determination, but differs slightly in its legal form. According to Section 202 of the German Criminal Code (StGB), sexual coercion occurs when someone forces another person to perform a sexual act that does not lead to sexual intercourse using "less coercive means". A sexual act is a touching of male or female body parts (vagina, breasts, penis and testicles as well as the anus) that is not merely a fleeting sexual act.
What is the difference to rape?
The difference between rape and sexual assault lies primarily in the type of sexual act that led to the offense. Sexual assault does not necessarily have to involve penetration. Other sexual acts - such as touching the genitals, oral or anal contact or forcing someone to perform other forms of sexual acts - can also be considered sexual assault.
The means of coercion used in sexual assault are not as severe as in rape. Here, it is sufficient if the perpetrator forces the victim to perform the sexual act by means of threats or other disadvantages (e.g. psychological violence or threats of negative consequences).
Penalty for sexual assault
The penalties for sexual assault are somewhat milder compared to rape, but still very serious. The perpetrator can expect a prison sentence of six months to five years. As with rape, the severity of the sentence depends on the circumstances of the offense, in particular the intensity of the coercion and the consequences for the victim.
Victims of rape and sexual assault
Both men and women can be victims of rape and sexual assault. In practice, however, women are far more frequently affected than men. According to the latest crime statistics for 2023, a total of 1,296 reports of attempted or completed rape were filed in Austria, of which 1,066 were completed offenses with female victims and 52 with male victims. There were 163 female and 15 male victims of attempted rape.
246 victims were reported for sexual assault, of which 223 were female and 23 male.
Special conditions for leniency and ankle bracelets for rape offenses
In Austrian criminal law, there are certain regulations on the leniency or conditional leniency of sentences. According to § 43 Para. 1 of the Austrian Criminal Code, the sentence can be conditionally remitted in full under certain circumstances. According to Section 43 (3), conditional leniency is not possible for prison sentences imposed for rape. This means that if a conviction for rape results in a prison sentence of up to two years, where in principle a conditional leniency would be possible, no (full) conditional leniency of the sentence is possible.
Another topic that is often discussed in cases of serious sexual offenses such as rape is ankle bracelets. This is used in Austria as an alternative to imprisonment to restrict an offender's freedom of movement while they are in society. However, ankle bracelets are not an option for rape offenses, as certain serious sexual offenses are excluded from this option in accordance with Section 156c (1) (4) of the Austrian Criminal Code. Rather, when examining the suitability of an ankle bracelet, the target-related requirements of Section 46 (1) StGB must be taken into account, which means that the severity of the offense and the risk to the victim and the general public play a decisive role.