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No. 60/2004
Federal court to the Strafbarkeit sadomasochistischer
Practices with deadly exit
On the revision of the district attorney's office, the 2nd punishment senate of the federal court canceled a judgment of the regional court Kassel, through which the accused had been convicted because of careless killing of its life companion to a prison sentence of a year and ten months with parole to the proof, and the thing at another punishment chamber of the regional court back reprimand.
Object of the revision main negotiation was motivated offended especially the question, whether sadomasochistisch injury against the good customs and are illegal therefore in spite of a consent of the victim. The senate affirmed this question for the case of dangerous actions.
After the determinations of the regional court, the life companion of the accused showed large interest in the execution special sexual practices. It preferred one - already in the past repeatedly practiceen - certain type of the Fesselung, connected with a thrush process, that in its excitement sexual evoked. At the deed day, the accused tied up wished its life companion again like of it. After it had dispersed its repeatedly expressed objections against the type of the procedure, it pressed a metal tube on its desire there interval good at least for three minutes on its neck and obtained so the desired oxygen lower provision. The massive compression of the neck containers led at the life companion to the heart standstill after stopped oxygen supply to the brain. Moreover it did not come in its to an injury wanted massive by the accused of the Kehlskeletts, which was to be sure not death causal. The accused got a deadly progress of the violent effect on the neck of its life companion for possible, trusted however on that that the danger would not realize itself.
The regional court did not look at proved a (contingent) killing design of the accused as and appraised the deed as a careless killing.
A conviction because of injury with death sequence did not reject it because the accused had undertaken the compression of the neck containers with consent of the victim and the deed custom adverse been would be. This evaluation proved to be a to the right mistake custody.
After 228 StGB, that, that undertakes an injury with consent of the injured person, acts, only then illegally if the deed offends in spite of the consent against the good customs.
The senate decided that sadomasochistische actions that lead to injury state of affairs moderate do not represent, already because of its sexual motivation an offence against the good customs. Earlier differently sounds decisions of the empire court are to be looked at as a result of changed general moral presentations than overtaken. Decisive for the customs adversity judgment in the reference on sadomasochistische actions are degree and weight of the threatening right good injury. The boundary to the customs adversity is exceeded therefore in any case then if in ahead show of objective view of all authoritative circumstances the Einwilligende is brought by the injury action into concrete death danger. In this case, a justification of the deed eliminates alone through the consent of the injured. Such a case existed in view of the highly dangerous action of the accused here.
The senate rejected the revision of the accused because the judgment showed no right mistake to its disadvantage.
Judgment of the 26 May 2004 - 2 StR 505/03
Karlsruhe, the 26 May 2004
Press place of the federal court
76125 Karlsruhe
Telephone (0721) 159-5013
http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2004&Sort=3&client=10&nr=29282&pos=1&anz=61
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