Abuse in the outdoor pool: Why suspects in sexual offenses are released until trial

Outdoor pools once stood for summer idylls and red-and-white fries. But that's been over for years. Ambulance sirens have become the soundtrack of the pools. Police officers patrol, and security checks are conducted in the entrance areas. The reason: reports of sexual assaults – almost always by migrants – are increasing across Germany.

At the end of July, for example, in Gelnhausen, Hesse, four Syrians allegedly touched nine girls between the ages of eleven and seventeen "all over their bodies." Days later, further incidents followed at outdoor swimming pools in Ludwigshafen, Hamburg, and Ludwigsburg. The public's horror is widespread and is increasingly turning into anger.

The reason: Suspected sex offenders are usually released after an initial interrogation. How is this possible? Criminal defense attorney Alexander Stevens offers a legal perspective on the situation.

An indication is far from proof

Anyone who commits a crime is automatically placed in pre-trial detention – a misconception. Whether a suspect is provisionally detained is determined based on clearly defined criteria, Stevens explains in an interview with the Berliner Zeitung.

Of particular importance is the question of whether there is a risk of absconding, obstruction of justice, or reoffending. Stevens explains: "A risk of absconding only exists if there are concrete indications that a person will most likely permanently evade criminal proceedings." If the perpetrator has no permanent residence, which is a frequent occurrence with asylum seekers, this circumstance can be considered an indication of a possible risk of absconding.

However, that alone isn't enough: "It's all about looking at the bigger picture. If the person has stable personal ties, is firmly rooted in the community, and has a regular job, this can, in turn, speak against the assumption of a risk of absconding." It is up to the respective judge to carefully examine whether there is a risk that the person will evade proceedings. "This is a prognostic decision, not a blanket assessment," Stevens emphasizes.

This sober legal perspective clashes with what many people feel is right. Often, there's talk of an "obvious risk of flight." Stevens comments: "However, such assessments are insufficient from the perspective of the judiciary. Pretrial detention is a serious restriction of existing civil liberties, which is only possible with a very clear legal basis. Furthermore, the presumption of innocence applies until a person has been legally convicted."

Another reason for detention is the risk of obstruction of justice – "if there are indications that evidence could be tampered with or witnesses could be influenced." But here, too, the following applies: "Mere suspicion is not enough; there must be concrete evidence." And what about the risk of reoffending? This is only considered if there are concrete indications that the suspect could soon reoffend, usually if there is a relevant prior history.

The fact that suspected perpetrators are released is not due to a lax justice system, but rather to the principles of the rule of law, says Stevens. "Pretrial detention is a sharp sword. It may only be used with a clear legal basis and not to appease the public." The law also provides for individual case review, not automatic procedures.

The offense itself also plays a role. Sexual harassment is "legally considered to be a low-level offense, meaning the offense is 'only' punishable by a prison sentence of up to two years." In contrast, theft can be punished with up to five years in prison. "So, if we look at the legal situation objectively, sexual harassment is not a particularly 'serious' offense from the legislature's perspective."

Regardless of the severity of the crime, the location of the prosecution also plays a crucial role. The fact that there are regional differences in the ordering of pre-trial detention is "not a gut feeling, but a fact." Stevens commented: "The Code of Criminal Procedure applies nationwide, but its interpretation and the willingness to enforce it vary. Bavaria stands for a law-and-order policy, while Berlin is more cautious in its decisions on detention."

“From a constitutional point of view, this effect is by no means unproblematic”

In practice, this can mean that someone is "in pre-trial detention in Munich, while in Berlin they would have been released on parole." For citizens, this opaque decision-making principle often appears arbitrary, and from a constitutional perspective, this effect is by no means unproblematic, says Stevens.

Stevens attributes the increase in the number of reported sexual offenses in recent years primarily to changes in the law. "Especially in the area of sexual offenses, many new offenses have been created or existing ones expanded. When more acts are classified as criminal offenses, the statistics inevitably rise."