Not a particularly serious case—shifting responsibility to the affected parties in a Federal Court of Justice ruling from 44 years ago

44 years ago today (October 26, 1982), a criminal division of the Federal Court of Justice (BGH) granted the appeal of a defendant who had forced his wife to have sexual intercourse.[1] For these acts, he had been convicted by the Regional Court (LG) of coercion in conjunction with bodily injury—with the Regional Court (LG) also finding that the acts constituted particularly serious cases of coercion under § 240(IV) of the German Criminal Code (StGB) (old version). The Federal Court of Justice (BGH) found this classification as a particularly serious case to be legally erroneous.

The BGH’s reasoning in the judgment presents an interesting analysis of domestic violence. The BGH consistently defends the behavior of the abusive husband with regard to its severity. For example, regarding the coercion to engage in sexual intercourse, the BGH writes that the defendant “may have wanted to preserve the marriage and would likely have preferred to have sexual relations with his wife on a voluntary basis.”[2] Wanting to preserve the marriage—marital duties used to include the obligation to engage in sexual intercourse.[3] In 1966, a civil division of the BGH wrote the following on this subject: “If she (…) is unable to find satisfaction in marital relations, the marriage nevertheless requires her to show marital affection and a willingness to make sacrifices, and forbids her from displaying indifference or reluctance.”[4] The Criminal Division of the BGH, which in 1982 rejected the classification as a particularly serious case of coercion, did at least not criticize her for refusing. However, even the Criminal Division may consider sexual intercourse to be a marital duty. The fact that sexual intercourse was forced does not, in any case, make this a particularly serious case of coercion. In the words of the BGH: “This does not necessarily indicate an attitude that is particularly insulting or betrays contempt (…).”[5]

In addressing the question of an especially serious case of coercion, the BGH ruling primarily focuses on the behavior of the woman involved. This is typical of shifting responsibility onto the victim (victim blaming). For example, the BGH criticizes the Regional Court’s (LG) ruling for having “failed to discuss what prompted the wife to continue sharing the marital home and the marital bedroom with the defendant over this period, despite the treatment she received from him.”[6] This implicit victim blaming does not end there. The BGH rules that, by failing to move out of the home again, “her objection to sexual contact (...) lost considerable weight.”[7] The wife is thus attributed partial blame—simply by virtue of her presence. 

Yet, according to the description in the ruling, the woman in question had actually moved out and was subsequently “brought back to the marital home against her will” by her husband.[8] This act of bringing her back, which the Federal Court of Justice (BGH) itself mentions, could have provided the court with some insight into the possible extent of the defendant’s controlling behavior and the coercion employed. It could also have provided the BGH with evidence regarding its question as to why the woman did not move out again. Instead, the consequences of this controlling behavior are even held in the defendant’s favor. Both the Regional Court (LG) and the Federal Court of Justice (BGH) take the “physical proximity” into account in the defendant’s favor, which “may not have made it easy for him to completely refrain from intimate relations with his wife.” Intimacy—the husband had, as proven, forced the woman to have sexual intercourse approximately 10 times.

The question of moving out can be turned on its head and stated as follows: It is the perpetrators of violence who remain[9]—and who bring the affected person back into the home even against her will and “do not leave her in peace.”[10]

At the time of this 1982 Federal Court of Justice (BGH) ruling, sexual intercourse against the spouse’s discernible will was explicitly not a criminal offense. Only coercion to engage in such acts and bodily injury were criminal offenses. Since 1997, so-called marital intercourse has no longer been exempt from the criminal offense of rape. Today, therefore, such a case would no longer be classified as a “particularly serious case” of coercion, but rather as rape. However, the question of what demands are placed on victims and what accusations they must defend themselves against remains relevant. May the shift in responsibility described here from 44 years ago serve as an example of a bygone era. 

[1] Federal Court of Justice (BGH), judgment of Oct. 26, 1982 – 1 StR 537/82, NStZ 1983, 72, 72.

[2] Ibid.

[3] It has only recently been clarified that this is no longer part of marital obligations: In 2025, the European Court of Human Rights (ECHR) ruled that a duty to engage in marital intercourse violates the “right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR).” See the ECtHR ruling: Dr. Franziska Kring, “ECtHR Condemns France: Lack of Sex Is Not Grounds for Divorce” LTO (January 23, 2025) <https://www.lto.de/recht/nachrichten/n/egmr-frankreich-1380521-lack-of-sex-in-marriage-is-not-grounds-for-divorce-self-determination> last accessed on October 19, 2026.

[4] Federal Court of Justice (BGH), judgment of Nov. 2, 1966 – IV ZR 239/65, NJW 1967, 1097.

[5] Federal Court of Justice (BGH), judgment of October 26, 1982 – 1 StR 537/82, NStZ 1983, 72, 72.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press 2007) 130.

[10] Antje Joel in: Manuela Heim, “Perpetrators Are Ignored” taz (Berlin, February 11, 2020) < https://taz.de/Autorin-ueber-Maennergewalt-in-der-Ehe/!5659533/> last accessed August 27, 2026.