Offensive Behavior and German Penal Law

Abstract

Several provisions of the German Penal Code deal with conduct perceived to be intolerable and offensive. Punished are public sexual acts, dissemination of certain obnoxious kinds of pornography, (e.g., pornography with children), public display of pornography in general, and incest. Also offensive are abusive statements against minorities, denial of the Nazi genocide, insults against religious denominations, disturbance of religious ceremonies, mistreatments of dead bodies, and desecration of burial sites. Attempts to justify the prohibition of such behavior within the framework of contemporary German penal theory has led to difficulties. Most of these acts do not result in tangible harm to a specific person. In the absence of obvious damages, it is difficult to reconcile these parts of the German Penal Code with general principles concerning the proper range of the criminal law. The most straightforward explanation would simply point to the fact that the actor violated a moral rule. It would be easy to make that claim for most of the listed acts; their prohibition, indeed, is compatible with prevailing moral standards. Such a moral justification, however, runs contrary to the premises of modern German penal theory.