Germany is reconsidering one of the fundamental principles governing its sexual criminal law: what constitutes consent. A proposed reform of Section 177 of the German Criminal Code would shift the legal focus from whether a person sufficiently expressed refusal to whether the other party obtained consent. The distinction has become particularly significant following the trial of Gisèle Pelicot in France, which brought renewed attention to how men can interpret a woman’s silence as agreement.
Under the existing legal approach, commonly described as the ‘no means no’ principle, the question centres on whether the person concerned made their lack of consent sufficiently clear. The proposed change would require closer examination of whether consent actually existed or was simply assumed by the alleged perpetrator. The presumption of innocence would remain unaffected.
The proposal has generated disagreement in Germany. Feminist organisations and parties on the progressive political spectrum have welcomed the move, while critics, including former Federal Court of Justice judge Thomas Fischer, have warned against what he describes as an “unbridled will to persecute”, arguing that the reform could sacrifice the complexities of sexual desire in favour of rigid legal definitions.
The debate extends beyond the wording of criminal legislation. It concerns the relationship between sexual freedom, individual autonomy and the moral responsibilities people have towards one another. Philosopher Manon Garcia has argued that deciding what should be legally permissible in sexual relationships inevitably involves some understanding of what constitutes good sex and what individuals can reasonably expect from one another.
The liberal understanding of sexual freedom has traditionally rested on a relatively limited principle: adults should be free to engage in whatever sexual practices they choose, provided everyone participates freely, knowingly and without deception. The state and society should not impose moral judgements on private sexual behaviour simply because particular practices appear degrading, distasteful or unconventional to outsiders. The difficulty lies in determining what it means for a decision to be genuinely free.
This question has long divided feminist thought. During the feminist sex wars of the 1970s, writers including Andrea Dworkin and Catharine MacKinnon interpreted pornography and sexual relations as extensions of male power and violence. Others, particularly the so-called pro-woman feminists, defended heterosexual women’s right to desire sex without having their preferences dismissed as products of patriarchal conditioning.
Ellen Willis became one of the intellectual pioneers of what would later be called sex-positive feminism. In her 1981 essay ‘Lust Horizons’, she argued that opposing feminist positions had inadvertently shared a conservative assumption: that men actively desire sex while women merely tolerate it. Defining female desire solely through the absence of coercion, she argued, continued to deny women recognition as independent sexual subjects. Their decisions to consent or refuse, she maintained, should be taken seriously.
This understanding of autonomy is closely connected to Immanuel Kant’s moral philosophy, in which individuals are not merely subject to external rules but must also recognise themselves as authors of the principles governing their conduct. Sex-positive feminism draws on this idea to reject paternalistic interpretations of women’s choices. Amia Srinivasan develops a related argument in her book ‘The Right to Sex’, maintaining that women should be believed when they describe their own sexual experiences and preferences, including participation in pornography, paid heterosexual sex or consensual rape fantasies.
However, the principle of individual autonomy becomes more complicated when examined through the concept of self-ownership. The liberal tradition, particularly the philosophy of John Locke, has often treated the individual as the owner of their own body, entitled to determine who may access it. Locke’s assertion that “each man has a property in his own person” became an influential foundation for understanding individual freedom as the ability to control and dispose of oneself.
The philosopher C. B. Macpherson described this conception as that of the “possessing individual”. Eva von Redecker subsequently developed the idea of “phantom ownership” to describe claims of ownership that lack a legitimate foundation. She includes patriarchal control over sexuality among the historical forms of possession that this concept helps expose.
The trial of Dominique Pelicot in Avignon in 2024 demonstrated the continuing relevance of that history. Several men involved in the rapes of Gisèle Pelicot claimed that her husband had given them permission. Their arguments reflected a patriarchal understanding in which a woman’s sexual autonomy could be subordinated to her husband’s authority, recalling historical legal arrangements such as the Napoleonic Code and the common-law doctrine of coverture.
The limits of formal consent were also examined in a case involving La Factory, a sexual entertainment establishment operated by Z Machine in the 15th arrondissement of Paris since 2023. The business organised group sexual encounters involving paying male clients and women who, according to its owner, determined the scenarios themselves. Participants signed consent forms, and the events could supposedly be stopped at any time.
The establishment was temporarily closed following proceedings before France’s Conseil d’État, the country’s highest administrative court. The court did not prohibit the sexual practices themselves but questioned whether the consent forms were sufficient to establish that participation was genuinely free, informed and revocable. Its concerns included advertised scenarios involving sexual assault, violence, deprivation of liberty and kidnapping, in which women were described as having consented “not to consent”.
The ruling also considered whether the treatment of women involved could violate human dignity even where they had agreed to participate. This revived a longstanding legal controversy over whether individual freedom can be restricted in the name of dignity. Earlier precedents included the 1995 Morsang-sur-Orge ruling, which upheld a ban on dwarf tossing despite the participant’s consent, and Germany’s 1981 peep-show ruling, which treated the presentation of women as objects of sexual stimulation as incompatible with human dignity. The 2002 law regulating the legal status of prostitutes subsequently challenged the assumption that paid sex was inherently immoral or incompatible with dignity.
The analysis warns that human dignity, if detached from individual consent, could become a justification for prohibiting practices simply because authorities consider them degrading. At the same time, treating declared consent as the final word risks overlooking coercion, dependency, fear and the circumstances that shape individual decisions.
Hannah Arendt’s engagement with the medieval philosopher John Duns Scotus offers another way of approaching this tension. In ‘The Life of the Mind’, Arendt examines Scotus’s argument that genuine freedom requires the ability to affirm or reject something independently. A decision is genuinely voluntary only if the individual could have chosen differently.
Arendt develops this understanding through the Augustinian expression ‘Amo: volo ut sis’ — “I love: I will that you be.” The idea is not that one person should determine another’s existence, but that another person’s freedom should be affirmed without attempting to possess or control it. Arendt distinguishes this from a form of power that disguises domination as concern for another person’s true identity.
Applied to sexual consent, this approach suggests that a person’s willingness must remain present throughout an encounter. An initial agreement cannot become permanent permission, and silence cannot be converted into consent by another person. Consent can be withdrawn at any moment, regardless of what was previously agreed.
The analysis argues that criminal law cannot determine whether every sexual decision is entirely free from social influence or contradiction. Its more limited responsibility is to ensure that another person’s will is not assumed, substituted or invented. A ‘yes means yes’ principle would therefore establish a fundamental boundary: individuals may express their own desires, but they cannot decide on behalf of someone else.
