A woman in Germany has been found guilty of a hate crime and sent to jail for calling a man who was given a suspended sentence for his part in the brutal and prolonged gang-rape of a 15 year-old a “rapist pig”. 

Maja R, a 20 year-old from Hamburg, sent the direct message to one of the perpetrators who attacked the teenage girl in a local park in 2020, after his name and number were leaked on Snapchat.

“Aren’t you ashamed when you look in the mirror?”, she asked, before calling him a “disgraceful rapist pig” and a “disgusting freak”. Maja R went on to suggest that he “couldn’t go anywhere without getting kicked in the face”, but then quickly added: “[L]et’s hope you are just locked away.”

The male was one of nine young adults convicted of luring the 15 year-old to a secluded area of Hamburg Stadtpark as she walked home from a friend’s birthday party, and then raping her repeatedly over a number of hours in September 2020, in a case that shocked Germany’s second-largest city. 

Spanish news agency EFE reports the German Ministry of Justice as stating that four of the defendants hold German citizenship and reside in Hamburg, while the others have Afghan, Armenian, Kuwaiti, Montenegrin and Iranian nationality. Two others were listed as having “uncertain nationality” that would need to be clarified by the courts. Local publication Hamberger Morgenpost later reported that four were from Hamburg, and that the others had Armenian, Egyptian, Iranian, Kuwaiti and Polish nationality.

Because at the time of the offence the perpetrators were all under 20 they were subject to the country’s juvenile law, which meant the public were excluded from the criminal proceedings. During the trial the court heard how the size of the group gradually increased over the course of the two-and-a-half hour attack, as members started inviting others to the scene via online group chats, with one person allegedly filming and then sharing videos of their actions.

It also emerged that the victim was hypothermic when she was found, and had to be rushed to intensive care.

Despite these unspeakably gruesome details, only one of the defendants — the Iranian national — spent any time in jail following the trial. It is perhaps a measure of the type of individual involved that when asked about the rape in court, he replied: “What man doesn’t want that?”

The rest of the attackers, including the one defamed by Maja R, were given suspended sentences, along with probation and some “instructions for educational support”.

According to Nahlah Saimeh, who reportedly appeared before the court as an expert witness, this brutal gang-rape of a defenceless young woman may have been a “means of releasing frustration and anger” stemming from “migration experiences and sociocultural homelessness”.

Maja R has now been sentenced to 48 hours in jail for her comments, in part because she had a previous conviction for theft.

In a suitably dystopian conclusion to this courtroom-based exercise in the transvaluation of basic liberal norms, Josef K — or rather, Maja R — ended up apologising to the young man she had contacted, telling the court: “It didn’t help anyone.” She added that she wanted to go back to college and study to become a paediatric nurse.

Hamburg authorities are now investigating around 140 more suspects for allegedly insulting or threatening the gang rapists, with 100 of the suspects based outside Hamburg.

The case has laid bare Germany’s free speech stifling defamation laws, which criminalise causing offence with even mild slurs like “idiot”. Breaking the law can lead to punishment of up to two years in prison.

In German criminal and defamation law, the concept of “personal honour” holds particular importance as the fundamental principle underlying the protection not just of an individual’s objective reputation and social status (i.e., “external honour”) but also their subjective sense of dignity and value (i.e., “inner honour”).

Understood in this context, Maja R’s private WhatsApp message was a violation of the convicted gang-rapist’s “inner honour”.

Various offences of defamation are standardised in the country’s Criminal Code, including insult (§185), defamation (§186) and slander (§187). What they all have in common is that they protect “personal honour” and criminalise its deliberate violation by another person.

It isn’t hard to discern the influence on this legal framework of German philosophical idealism and … radical subjectivism

While it’s true that “value judgements” — i.e., personal opinions — receive some protection under Article 5 of the German Constitution (Grundgesetz), which guarantees the right to freedom of expression, a limit is reached in the form of “defamatory criticism”, which is understood as any insulting statement that no longer serves to discuss the matter at hand, but only to defame and disparage one’s interlocutor.

It isn’t hard to discern the influence on this legal framework of German philosophical idealism and the radical subjectivism it bequeathed to European socio-legal thought. In this sense Germany can arguably lay claim to the dubious distinction of being the birthplace of the vague, perception-based understanding of “hate speech” currently sweeping across the world. 

The “Copernican revolution” (Drehung) first proposed by Königsberg’s most famous son, Immanuel Kant, in the famous preface to the second edition of his Critique of Pure Reason (1781) was indicative of a new organisation and positioning of the individual subject vis-à-vis the external world; that is, the slow turning away from the possibility of human reason ever directly knowing noumenal reality that began during the latter half of the eighteenth century and reaches its apogee in the emotional safetyism of our current malaise.

Rather than the structures of our mind existing for the purpose of responding to reality, Kant held that they existed for the purpose of imposing themselves upon a malleable reality. In other words, his epoch making “change in point of view” was to propose that “our representation of things, as they are given, does not conform to these things as they are in themselves, but that these objects as appearances, conform to our mode of representation”.

For Kant, it is not the noumenal world of reality, but the phenomenal world constructed out of our sensations, which is sovereign — and it is precisely for this reason that his philosophical idealism marks a fundamental shift in the history of western philosophy, from objectivity as the standard to subjectivity as the standard.

Perhaps unsurprisingly, Kant would later go on to introduce into this subjectivist epistemology his Categorical Imperative: “Act in such a way that you always treat humanity, whether in your own person or in the person of another, never simply as a means, but always at the same time as an end”. “Unsurprisingly” in the sense that, as he explained in his Groundwork of the Metaphysics of Morals (1785), “human dignity” — the dignity of the sovereign mind is “an unconditional and incomparable worth” that “admits of no equivalent”. 

It would of course be difficult to overstate the extent to which successive generations of German idealist philosophers added nuance and complexity to Kantian notions of the mind, external reality and human dignity. Nevertheless, what we find underpinning the German Criminal Code is a theory of “inner honour” premised on a foundationalist understanding of human dignity that has its roots in Kantian epistemology.

“It is,” as the law professor Jan Oster puts it, “deeply engraved in the German legal mindset to think reputation from honour, and to think honour from dignity.”

“Deeply engraved,” but also deeply troubling, since in an era of rampant safetyism it is all too often simply assumed that the need to protect the sovereign individual’s “honour” must inevitably take precedence over the rights of others to freedom of expression — others like Maja R, for instance, who wish to call a convicted rapist a “disgusting rapist pig”. 

This, in turn, has led to fears that the country’s unique defamation laws are slowly but surely being weaponised by (for the time being…) progressives, to go after forms of speech that they find political distasteful. 

Earlier this year, for instance, German entrepreneur Michael Much faced a fine of €6,000 for making fun of various Green Party politicians.

During last autumn’s state elections in Bavaria, Much hung posters on his garden fence depicting Green Party leader Ricarda Lang sitting on a steamroller, and hinting that the politician — who, in the words of PG Wodehouse, undoubtedly “likes to get her money’s worth out of a weighing machine — was “too fat” to do good politics.

Police searched his house and confiscated the posters, with prosecutors arguing in court that his actions were “impertinent and defamatory, even dehumanising” to Ms Lang. Thankfully, following the hearing the presiding judge acquitted Much, and stated that “[p]oliticians have to accept criticism, and ministers have to accept even more criticism. If Mr Much is an entrepreneur… dissatisfied with politics, he is allowed to express it.”

Other recent cases have not had such happy endings, however. 

In May, a member of Germany’s right-wing Alternative for Germany (AfD) party had her conviction for incitement to hatred upheld on appeal, after using official statistics to warn that Afghan immigrants are disproportionately liable to commit sexual violence against women and girls.

The crime committed by Rotenburg AfD leader Marie-Thérèse Kaiser was to respond publicly to news that Afghan migrant workers would be relocated to Hamburg by citing figures which she claims show Afghani males are disproportionately involved in the perpetration of serious sexual offences in Germany.

In a first-instance judgment from June 2023, the Rotenburg District Court concluded that Kaiser had taken the information quoted in the text of the articles out of context, and any reasonable person would therefore perceive her post to be inciting hatred. 

The district court’s judgment was then confirmed on appeal at the Verden regional court in Lower Saxony earlier this year, where Kaiser was also found guilty of inciting hatred against Afghan local workers. “Anyone who attacks human dignity cannot invoke freedom of expression,” the judge told the court.

The German authorities have also recently attempted to force Gab, a free speech software company, to release personal data identifying a user of its platform who they accused of hate speech for making comments about the portly Ms Lang that “denigrate her weight”.

According to the German Federal Criminal Police Office (Bundeskriminalamt), the user’s comments represented an attack “on the honour of the political”, as well as a show of disrespect.

“Through the sexualised and denigrated representation of ‘Ricarda Lang’, the user attacks the honour of the political and shows his own disrespect (section 185 of the German criminal code”),” the letter addressed to Gab’s founder and CEO Andrew Torba stated.

“With this insult the user publicly insults a person in the political life on the grounds of the insulted person’s position in the public life,” it explained, before adding: “In order to fulfil its legal prescribed duties, the Bundeskriminalamt would like you to supply the customer/registration details on the above-mentioned data as quickly as possible.”

In response, a distinctly unimpressed Torba posted a statement to the company’s website in which he essentially referred the authorities to Private Eye’s response in the case of Arkell v Pressdram, before moving to reassure Gab’s users that the request would not be complied with and that his team “stands firm in its belief that free speech is a fundamental human right”.

Yet despite Torba’s stirring pushback, concerns over the country’s approach to balancing freedom of expression with its own, distinctively Kantian understanding of “personal honour” remain. 

As long ago as 2018, for instance, Article 19 called for a “comprehensive review” of Germany’s Criminal Code. In a report titled Germany: Responding to ‘Hate Speech’, the campaign group acknowledged that due to Germany’s history, governments and the judiciary will inevitably want to guide public debate to safeguard a certain level of public discourse and ensure that the rhetoric of Nazi Germany is not repeated, but went on to argue that a number of the country’s provisions of criminal law around insult and defamation “do not fully comply with international freedom of expression standards”.

That remains as true and necessary now as it was six years ago.