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Abstract: German criminal law distinguishes between simple homicide (Totschlag) and aggravated homicide (Mord), the latter carrying a mandatory sentence of life imprisonment. If these provisions are applied to killings between partners of different gender, women stand a greater risk than men of being convicted of Mord. A man who decides to kill a woman can often do so without fulfilling any of the statutory aggravating circumstances, unless the court finds that he killed the woman for a “base motive”. By contrast, if a woman wants to kill a man, physical inferiority often makes her resort to “stealth”, which is one of the circumstances turning a killing into Mord. German courts assume that a killing is done by “stealth” whenever the victim is killed while asleep or otherwise unaware of an impending attack on their life. There are, however, various ways in which the courts sometimes (but not always) limit the applicability of “stealth” in cases in which a woman kills her abusive male partner. To enable courts to apply the German homicide statute in a more gender-sensitive way, the legislature should strike “stealth” as an aggravating circumstance. At the same time, the protection of women could be extended by adding as an aggravating factor the fact that the victim was unable to effectively defend herself.
Keywords: homicide; justification; motives; necessity; partners; sentencing; stealth
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