Sexuelle Gewalt gegen Kinder im österreichischen Strafrecht des 19. und 20. Jahrhunderts – ein Delikt und Strukturmerkmal zugleich

Abstract

Abstract: The Austrian criminal law first introduced an age of consent in 1803 – since then, it has been set at the age of fourteen. Legal provisions for the protection of under age children against sexual violence were among the main elements of legal reforms in the wake of the Age of Enlightenment. These reforms resulted in a constantly growing protection of the individual sexual sphere. The right of sexual integrity became a fundamental element of criminal law governing sexual offences. However, neither the provisions of the Austrian criminal law of the 19th and 20th centuries nor the jurisdiction of the Supreme Court secured the absolute protection of under-age children against sexual violence. Sexual intercourse between a woman and an underage boy, for example, was not criminalized, and the juridical protection of a child depended on its sexual reputation. This article provides an insight into these legal regulations. From the perspective of sexual history, it will be argued that a different aspect of enlightened legal reform served to limit the legal protection of under-age children, namely the guidance of the subjects towards a bourgeois form of sexual morality. This morality assumed a natural gender binary and gender-specific sexual behaviour, and even children were to be disciplined in accordance with these principles. Thus, it will be argued that, according to Johan Galtung’s concept of structural violence, the Austrian criminal law of the 19th and 20th centuries was itself a system of structural sexual violence against children, because it limited their legal protection in order to inculcate in them the norms of bourgeois sexual morality.