Drink spiking laws in Germany: K.-o.-Tropfen and the law

Context

In German the practice is usually described as the use of K.-o.-Tropfen, literally “knockout drops”; in English it is called drink spiking. The government bill on the subject speaks of so-called K.-o.-Tropfen and describes them as narcotising substances administered through a drink (government bill). The same bill describes the drops as given covertly (heimlich) and notes that several steps usually lie between giving the drops and the planned offence, such as finishing the drink, the onset of the effect and a change of location (government bill). Official German documents also use the English loanword Spiking (Federal Government’s answer).

According to the Federal Government, the use of K.-o.-Tropfen to commit offences is not provided for separately in the Criminal Code (Strafgesetzbuch); such acts are prosecuted under general offences (Federal Government’s answer). The legislative debate concentrates on two of them: the provision on sexual assault and the provision on robbery (Bundestag documentation). According to the Bundesrat bill, the victims of K.-o.-Tropfen in sexual offences are mostly women, often young women, and such substances are often used in offences directed at women because of their gender (Bundesrat bill).

Both provisions are built in layers. A basic offence is followed by aggravated forms with higher minimum penalties, and the most serious form covers an offender who uses a weapon or another dangerous tool (gefährliches Werkzeug) in committing the offence (text of the provision on sexual assault; government bill). The debate is therefore not about whether spiking a drink in order to commit such an offence is punishable. It is about which of these forms applies, and therefore which sentencing range applies (government bill). Neither bill would create a separate offence of covert administration; both work through the aggravated forms of the existing offences (government bill; Bundesrat bill).

The legal situation in Germany has three strands: the structure of the offences that applies today, the bills that would change it, and rules in the law on psychoactive substances that apply directly to handling certain substances (government bill; Bundesrat bill; amendment of the New Psychoactive Substances Act).

How the rules developed

The debate started with a decision of the Federal Court of Justice (Bundesgerichtshof). The court held that narcotising substances administered through a drink in the course of a sexual assault are not a “dangerous tool” within the meaning of the most serious form of the offence (government bill). According to the government bill, such cases have since been covered only by a catch-all aggravated offence with a lower minimum penalty, although the wrongdoing is comparable to the other particularly serious cases; the same problem arises for robbery (government bill).

One route to change this goes back to a proposal by the state of North Rhine-Westphalia in the Bundesrat (proposal of North Rhine-Westphalia; Bundesrat bill). It would add a new item to the most serious forms of sexual assault and robbery: cases in which the offender administers poison or other substances harmful to health (Gift oder andere gesundheitsschädliche Stoffe) to the victim in order to commit the offence (Bundesrat bill). This route names the act of administering a substance.

The Federal Government chose a different route. Its bill would extend the existing item: alongside weapons and dangerous tools, dangerous agents (gefährliche Mittel) used in committing the offence would be covered, both for sexual assault and for robbery (government bill). According to its explanatory memorandum, the aim is to make clear that all dangerous objects and means used in committing a sexual offence or a robbery fall under the most serious form (government bill). This route keeps the existing structure and widens the category of instruments.

Both bills aim at the same result: cases of drink spiking would fall under the most serious form of the offence and its higher minimum penalty (government bill; Bundesrat bill). The government bill also expects that, under the current law, sentences in these cases are as a rule already above the proposed minimum penalty, given the gravity of the offence (government bill).

A separate line of development runs through the law on psychoactive substances rather than through the Criminal Code. An amendment of the New Psychoactive Substances Act (Neue-psychoaktive-Stoffe-Gesetz) added a new annex of substances. Handling them is banned, with exceptions such as recognised commercial, industrial and scientific uses. The ban includes administering them to another person. Trading in them, placing them on the market and administering them are criminal offences (amendment of the New Psychoactive Substances Act). Unlike the two bills, which concern the sentence for the offence that a substance helps to commit, this rule covers handling the listed substances themselves (amendment of the New Psychoactive Substances Act; government bill).

For travellers

New Zealand’s travel advice and the German bills put the same conduct under different headings. The official advice for Germany groups drink spiking with theft as petty crime (SafeTravel advice for Germany). In the German bills, by contrast, administering a narcotising substance through a drink appears in connection with sexual assault and robbery, the offences it is used to commit (government bill; Bundesrat bill).

German-language sources usually speak of K.-o.-Tropfen; official documents also use the loanword Spiking (Federal Government’s answer).