The accusation was of violating sexual self-determination (§ 205a StGB), for which the Criminal Code provides for up to two years in prison. The defendant was not legally acquitted.
What is certain is that the man and the 24-year-old Irish woman, who lives in Berlin, met following a rock concert. There was an exchange of tenderness in the bar, and the man eventually accompanied the young woman to her Airbnb apartment, where consensual sexual intercourse took place. At first the 32-year-old also used a condom, but the second time he didn’t. The woman then resorted to pepper spray and demanded that the man give his name, address and telephone number. The 32-year-old gave false information except for the number, but he was able to find out regarding the number and report it.
The man claimed in court that following the first time he got up from the bed and took off the used condom, turning his back to the woman. She had to notice that. Then they got closer once more following he had used the toilet, whereby the woman reached for him and must have felt that he wasn’t using a condom this time. Stealthing – the removal of the condom unnoticed by the woman during consensual sexual intercourse – is therefore not present. The woman “didn’t ask”.
Demanding data with pepper spray
The 24-year-old then described how, during the second sexual intercourse, she only realized followingwards “that he didn’t have a condom.” She pretended to want to smoke a cigarette to get out of bed with this excuse and then demanded his details using pepper spray: “That wasn’t what I agreed to.” The man reacted “shocked, surprised” to her actions: “I just wanted to make the report so that I might get all the medical tests and show him if he had already done something like that before.” With regard to the timing in the apartment she rented and details, the witness contradicted her original statements to the police in her statement, which defense attorney Ernst Schillhammer pointed out several times.
In the end, the judge made a “flat acquittal,” as he emphasized. “I’m absolutely sure you didn’t lie here,” he told the defendant. The witness “didn’t intentionally lie. She told it the way she experienced it.” However, there is no reason to doubt the defendant’s account, which left “a very good impression.” The man apparently assumed that the woman agreed to unprotected sexual intercourse following she touched his penis before the second time. In this respect there was “a misunderstanding”. It would have been “more elegant and better” to “make it clear” with words, the judge stated in the reasons for the judgment.
The prosecutor initially made no statement. The acquittal is therefore not legally binding. The young woman had come by plane from Berlin to Vienna specifically to fulfill her duty as a witness while telling the truth.
