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The information here represents the situation at the beginning of 2003.
There are no special laws regarding sadomasochists in Germany. Many SM-practices, especially whippings, cuttings, brandings and other invasive techniques constitute a form bodily harm ("Körperverletzung). Depending on the instruments used, three forms of Körperverletzung can be distinguished:
- Spankings, mild whippings and practices that leave no enduring marks are regarded as "mild cases" (§223)
- Using any kind of weapon, potentiall lethal techniques like breath control or when two or more Tops stage a scene constitutes a "dangerous case" (§224)
- When a session goes so wrong that permanent disabilities result, or when that was the aim of the session - e.g. a castration - this is considered as causing grieveous bodily harm and punished according to §226
The bottom can legally consent to any kind of battery that does not conflict with "good and just morals" (Einwilligung §228), a somewhat indistinct term. How far the consent can go and when exactly it goes "contra bones mores" is not entirely tested in court. It is, however, safe to assume that any sane adult can legally consent to any play that falls under §223 but no one can consent to the cases ruled by §226. As prostitution (including SM parlours) is legal in Germany, most decisions regarding §224 come from cases where a pro-domme was later taken to court by a client. In the last years, judges usually took into account whether the extent of SM play was within the pre-negotiated limits.
Abduction, illegal restraint (Freiheitsberaubung, §239 StGB) and coercion (Nötigung, §240 StGB) are applicable to some forms of SM-Play, but it is likely that a court ruling would look at the context in which they happened and honor consent.
Indecency laws (§183a StGB) forbid public acts provoking offence among the bystanders, this makes public sex play illegal. However, there are no legal restrictions to play parties other than the usual ones that apply at home as well: you can sell and drink alcohol as well as have sexual intercourse at play parties. At some parties the sale of alcoholic beverages is restricted voluntarily, though, and no hard drinks will be sold.
The issue of organisations for underagers is currently under hot debate in the german subculture. SMJG, a group of minors and young adults, that organizes munches and social events has not been contacted by authorities.
Apart from that, no regulations seem to exist. BDSM Berlin e.V. has even been granted tax exempt status.
There have been several court rulings (the latest 1999 by a Berlin local labour court) that SM in itself is not a legal reason to fire an employee. The court ruled that deviant sexual interests are not sufficient to suspect that a person is more likely to disrespect another persons sexual or other rights.
We haven't yet heard of a case where the issue of one partner's SM orientation was successfully raised in a child custody battle. A family lawyer tells us that the courts are used to ex-partners slandering each other and usually ignore such arguments, but that in a case where there are other problems with the partner practising SM the SM orientation might add to his or her disadvantage.
Since the end of world war II, censorship has been abolished by the German constitution. However, the constitution does not protect freedom of speech, only a freedom of opinion and certain forms of expression, namely arts, religion and science, as long as they do not collide with the protection of the youth from negative media influences. Descriptions or images of nudity and even sexual intercourse can be legal as long as they constitute a form of art or are in a scientific context. Unfortunately the criteria are quite vague and have in the past been used to discriminate against alternative sexualities including homosexuality. Material is usually regarded as pornographic if its purpose is to arouse or to depict human sexuality in a stereotyped way (e.g. women always looking for a fuck).
Anything that is deemed negative to the normal sexual and social development of children and adolescents can be restricted to adults (even expression of arts and science). BDSM webmasters have had trouble for publishing "howto"-texts on practices like breath control for the reason that those contained personal descriptions and step by step guides to more safe forms of breath control (Datenschlag 2002). This has not been contested in court and since there is no national legal defence board yet it is unlikely that it will be. Since 2000, many German BDSM webmasters have been forced to hide all or parts of their content behind adult-check software and thus make it accessible only to paying customers because of expensive and unpleasant legal repercussions.
There is a national institution called "Bundesprüfstelle für jugendgefährdende Medien" (BPjM) that keeps a list of websites, books, videos and magazines (featuring sites such as rotten.com and bmezine.com) that are deemed inappropriate for minors. Any media which are included in this list must not be displayed in public. Moreover it must not be advertized and in the case of websites it is illegal to link to them. This list used to be available only to adults, but with toughened laws in the future it will be given only to the producers of web-filtering software, no longer to ordinary citizens. This will most likely be a major problem for BDSM webmasters since they could be convicted for placing links they did not know were illegal. How this is going to be resolved is not yet clear.
Many BDSM books (such as "Story of O") and magazines were included into this list of banished media until the censors' attention turned to the internet in the early 1990s. Since then, BDSM publications on paper have been mostly unchallenged, but most authors and editors choose to censor their own texts because they can't afford to risk having them confiscated. Descriptions and pictures of women dominating or hurting men seem to cause a lot less trouble than vice versa.
With the tighter laws regarding media coming into effect in April 2003, any kind of media that "glorifies war, depicts humans in a way that violates human dignity or portrays minors in poses that have a sexual appearance" is banned in various ways even without appearing on the list of the BPjM. It is to date completely unclear if this will have any impact on BDSM media but it could be applicable to pet play, heavy pain play or humiliating bondage scenes.
The regulatory power for media is shared between the German states and the federal parliament, but the regulations are applicable nationwide, if not internationally.
"Hard" pornography is illegal. This means child pornography, bestiality and rape/torture/violence in a sexual context where it is not completely clear from the context that it is presented as consensual.
Any kind of Pornography must be kept from minors. Advertising pornography, mailing it and having it on display in any public place is illegal. It may not be broadcast and video stores have to have a closed section or disallow minors alltogether if they offer porn movies.
Not that we are aware of. Most likely this would cause a minor scandal in the yellow press and be detrimental to the career of any politician or actor.
The most prominent appearance of SM is in afternoon TV talkshows and softsex magazines in the evening. The way SM is portrayed there is hardly accurate, mostly sadomasochists are used to add some pepper to staged court shows and the like.
Even the quality press usually disregards the difference between SM and violence - a lot of articles about sadistic sex offenders offer explanations that include a perceived "anything goes" as reasons for sexual violence. On other occasions, sadomasochists are stereotyped as "even more boring than the rest of us".
Accidents related to SM are usually not reflected in the quality media. The tabloids are different, but the impact of such articles seems to be low. Since sadomasochists are lumped in with sex offenders in more than one occasion, nonconsensual violence among SMers is not treated special.
Among younger people, interest in SM practices is quite common and those are usually not scared by reports of accidents. Older peoply tend to view sadomasochism as a perversion, but not based on reports of injuries or death.
It is more and more common to be open about SM interests, especially among the young. On the other hand, SM practices are more and more blended into the sex life without the need or wish to identify oneself as a sadomasochist.
Among the middle-aged and older it is not so common - mostly because of concerns about job and family members.
The awareness that sadomasochistic orientation is not sick, and therefore can not or should not be "healed", is growing in Germany. But even if some persons are sent to BDSM organizations by professionals, there is room for improvement.
All medical diagnoses must be passed to the health insurance companies coded according to ICD-10. ICD-10 still uses the old diagnostic criteria for paraphilia from DSM-III, so data on every practising sadomasochist who consults a physician or psychologist with SM-related problems will be stored even if the orientation in itself causes no distress. This is questionable under privacy aspects and may lead to increasing difficulties for sadomasochists who want private medical insurance.
There is very little useful literature on sadomasochism for German mental health professionals who don't read English. Sexological research in Germany has been much reduced since the Nazis destroyed this thriving field. Current scientific articles and books are few and far between and almost invariably written by psychoanalysts. There has been virtually no real research on paraphilia in the last decades. However, recent contacts with organisations of sexual therapists are very promising and a survey on professionals' attitudes towards SM will be done in 2003.
About 100 predominantly heterosexual and about 30 homosexual
By far the largest is SMart Rhein/Ruhr e.V., with similar groups like Schlagwerk (Hamburg), BDSM Berlin e.V. (Berlin) and SMigo (Munich).
The best known net-centric groups are Datenschlag and "Schlagworte", a kind of SM news agency where every participant can release news and information, but no discussion whatsoever takes place.
Web-based SM and fetish mags like Lustschmerz and Domantik side by side with about 10 other offer discussion fora, mailing lists, stories, photos and more.
Charon Verlag, a publishing house geared towards SM Texts prints the "Schlagzeilen" SM mag (see below).
The gay leathermen have an umbrella organisation called "Leder und Fetisch Community" (Leather and fetish community, LDC).
A similar organisation of the mainly het groups is currently planned.
There are two supra-national mailing lists that are useful to foster networking among groups. One is Schlagworte (mentioned above), the other one is called "SMorgasbord". SMorgasbord is geared towards presenting ideas and projects so that other groups can join and/or profit from them. However, volume there has been low.
Besides numerous smaller magazines, the "Schlagzeilen" is the most widely read SM and fetish mag in Germany. The publisher, Charon Verlag, is situated in Hamburg and prints a books (stories, SM Manuals) as well.
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