Defamation II: Aspects of ethics and morality

Many women who have become visible through performance and functions have experienced defamation. The lawyer and women’s history researcher Barbara Degen is one of them. Her thesis: Law and legislation alone are not enough to prevent defamation.

Published by Barbara Degen for the SAFI-Konferenz 2023 in Paris. Read the full text in German here.

Key messages:

• Legal regulations are undermined by a focus on possible „misconduct“ of women or reasons for relief of men.
• The lack of rules leads to vigilantism, there is an additional need for moral and ethical standards that place responsibility on as many people as possible.
• There is a need for cultural change, and there is a need for campaigns against abuse of power.

I would like to tell you about my own personal experiences with the punishment of unwanted, persistent women who massively disturb the male power elites:

Personal experience

I have been researching Nazi policies in Germany for many years. Most recently I focused on „euthanasia“, the killing of about 300,000 physically or mentally handicapped women and men in the German Reich. The sanatoriums and nursing homes decided about life or death. My grandfather was one of the victims of this policy in 1941.

Since 2010/2011 I have been researching what happened at the “Bethel/Bielefeld Sanatorium and Nursing Home” during the Nazi era. Bethel was the largest Protestant sanatorium and nursing home in the German Reich and the post-war period.

When I began my research, the undisputed “truth” in literature was that the foundation that managed Bethel had not only resisted during the Nazi period but had also bravely saved the patients from the dangers of the Nazi system. In my book „Bethel in der NS-Zeit – Die verschwiegene Geschichte“, published in 2014, I debunked this legend after discovering thousands of death certificates of dead infants and researching the background.

These findings can not and could not be accepted by the power elite of the Bethel institute. I have been scientifically defamed for over 12 years and have come to call these attacks „scientific stalking or bullying„.“

Now for my reflections on non-punishment of defamation:

Learnings from the women’s movement

As a lawyer for women, I was the interpreter between their wishes and interests on the one hand and the legal, often misogynistic norms – norms that harm women – on the other hand. That always meant that you had to think very carefully about whether it made sense to take legal action.

If my clients wanted to file a lawsuit, we had to discuss previous legal experiences and information about the risks before. Let me tell you one example, referring to the legal development of sexual violence at work:

It is thanks to the persistence of the women’s movement that legal progress was made at all. The discussion within the women’s movement began in the mid-1980s, was also reflected in the media and was driven forward by a large study funded by the EU and published after the annexation of the GDR: a study on the number, type of attacks and reactions of women. This was followed in 1994 by the first protective law, the so-called “Beschäftigungsschutz für alle Betriebe”. The law was explicitly aimed at protecting against assault. It contained, among other things, a completely new regulation:  employees had a right to refuse performance at work. This means, they were allowed to stay home as long as the employer did not take effective individual and institutional protective measures.

This law was replaced by the General Equal Treatment Act of 2006, which extended these issues, introduced an easing of the burden of proof, but deleted the right to refuse performance.

Laws are not enough

Anyway, in practice it has also turned out that legal regulations alone do not lead to a change in the behaviour of perpetrators and in the effect of a system based on the influence of powerful men. You will all be familiar with this: The focus in our society and in the public debate is often still largely

• on the misconduct of women in their past
• and on the excuses of the perpetrators.

Keywords are: the assertion of voluntariness, support of the accused person by other men, belittling, ridiculing women and much more. This is what I meant before: I always had to inform my female clients about these risks.

Not only in the field of science but also in the field of law, there is a tendency to create a sort of Pseudo-objectivity, to concentrate on alleged facts rather than on the perception by the women, which is to the disadvantage of the victims and contradicts the duties of protection and care. This is true for sexual violence, and it is true for defamation.

Ethics and politics

If the regulation and punishment of actions happening in an area as central and as damaging to people as defamation is left to the „free play of forces“ (de facto vigilante justice), this means ignoring the structural aspects and leaving it solely to those affected to assert their often deficient rights. In my view, there is only one way to avoid this dilemma: the experiences of those affected and the moral and ethical standards developed and propagated by feminists are incorporated into political considerations.

• We need legal regulations, but we know that laws alone will not completely change reality. It is not enough to punish the misconduct of perpetrators. A large number of people must also be prepared to take responsibility, develop transparent action strategies and introduce and apply control mechanisms. 
• This should be strived for in all areas and at all levels, also within organizations and civil society. If this is missing, a serious democratic deficit arises, which I see as a violation of human rights and the orientation of our constitutions towards the fundamental rights of self-determination, protection against violations and emancipation.
• The ethical principle of real equality and respect for women’s dignity must take precedence over economic interests and decisions. Here we rely on the Declaration of Human Rights and national fundamental rights. Persons show appropriate moral behaviour by accepting responsibility.

Protection against abuse of power

Defamation aimed at destroying persons in their position and existence is an abuse of power. A legal norm is not enough to contain or prevent abuse of power.  A culture change is needed, a new code of conduct.  And protection concepts are needed for those affected by defamation – defamation with and without a sexualised reference.

The cultural change must become visible on the political, the company, the scientific, the religious, the sporting, the civil society level. Individuals are responsible as members of society. If they hold a position within organisations (companies, universities, science funding, political parties, foundations, aso.), they should help to ensure that appropriate measures are taken at all hierarchical levels to avoid structural and individual abuse of power and / or defamation.

What is to be done?

• At the political level, legally effective measures must be taken. In Germany this includes the effective – not only verbal – anchoring of the primacy of Grundgesetz (GG),  Art. 3 § 2 (“Men and women have equal rights. The state promotes the actual implementation of equal rights for women and men and works towards eliminating existing disadvantages.”) and Art. 1 (“Human dignity is inviolable. Respecting and protecting it is the obligation of all state authorities.”). 
• All new legal laws and regulations, for example the reversal of the burden of proof and association action procedures as suggested by Zita Küng have to be based on human right standards. We are still working on concrete proposals..
• In addition to that, political education campaigns against abuse of power are necessary. Careful research into defamation will provide additional information.
• The federal governments shall set up a financial aid fund for those affected.
• The federal governments must produce a publicly accessible report on the successes and failures of their strategy every two years and work towards enforcement at the international level.

Dr. Barbara Degen is a lawyer and does research on women’s history. She is co-founder of the Feminist Legal Institute and the Haus der FrauenGeschichte in Bonn and she is an author („Das Herz schlägt in Ravensbrück. Die Gedenkkultur der Frauen“, „Justitia ist eine Frau. Geschichte und Symbolik der Gerechtigkeit“).

Read also:

• Defamation I: Defining and legally grasping it, published by Zita Küng.
• Defamation III: Why Organizations have to Deal with Defamation, published by Ulrike Reiche
• Defamation IV: The Media, the Public and the Loss of Control, published by Claudia Gigler.