A grab on the buttocks in a Viennese club. An unwanted touch at the office. An unsolicited nude image over WhatsApp. In Austria, each of these can fall under the offence of sexual harassment under § 218 StGB – punishable by up to six months‘ imprisonment or a fine of up to 360 daily rates, and in group cases by up to two years. What felt like an ordinary night out a few hours earlier can suddenly become a criminal accusation.

The line between behaviour that is merely inappropriate and conduct that is actually a crime is a narrow one under § 218. That is precisely why early, specialised defense matters. As a criminal defense lawyer in Vienna, I have represented many clients accused under § 218 – and in a number of cases achieved acquittals and the discontinuance of proceedings.

This page explains, in plain terms, what actually counts as sexual harassment under Austrian law, the current penalties, the special rule that the case cannot proceed without the victim’s authorization, the option of diversion – and what you should do the moment you learn that a report has been filed. The German version of this article is available here (auf Deutsch).

Is sexual harassment a criminal offence in Austria – and what counts?

Yes. Sexual harassment is a criminal offence under § 218 StGB where a person is harassed by a sexual act (geschlechtliche Handlung) on them or in front of them, under circumstances liable to cause legitimate offence (berechtigtes Ärgernis). The act must have a certain intensity. Fleeting or accidental touches do not qualify – and mere words never do.

English speakers usually associate „sexual harassment“ with employment law and HR complaints. Austrian criminal law is narrower and more specific. A „sexual act“ under § 218 means a not merely fleeting, sexually connected touching of the body parts belonging to the immediate genital sphere – the vagina and breasts of a woman, the penis and testicles of a man. A forced tongue kiss, a targeted grab between the legs or the groping of a woman’s breast fulfils the offence. The decisive point is that the alleged victim perceives the act as sexual and that it triggers a negative feeling of some weight – shock, disgust or anger. Mere surprise is not enough.

Why catcalling and suggestive comments are not enough

By themselves, verbal remarks – suggestive jokes, propositions, catcalling in the street – are not a sexual act under current case law, and so are not covered by § 218 StGB. This is a genuine line of defense, and it is also why „is catcalling illegal in Austria“ has a clear answer under criminal law: on its own, it is not. Words can have consequences under civil and equal-treatment law (see below), but the criminal threshold requires a physical, sexually connected act – or, since 2025, the sending of an unsolicited genital image.

The offences under § 218 StGB: from groping to cyberflashing

§ 218 StGB is not a single offence but a family of variants with different penalties. Which variant is alleged decides both the possible sentence and the defense strategy. Since the reforms of 2016 and 2017, and the addition of cyberflashing in 2025, the provision covers everything from a single deliberate grab to a coordinated group assault.

The individual variants

• Para 1 no. 1 – a sexual act on a person: the classic case, a not merely fleeting touch of the immediate genital sphere, apt to cause legitimate offence.
• Para 1 no. 2 – a sexual act in front of a person: for example, masturbating in front of another person. Mere exposure (exhibitionism) is punishable in Austria only if the person sexually manipulates themselves.
• Para 1a – intensive touching of the genital sphere (since 1 January 2016): a deliberate grab on the buttocks or thighs that violates the person’s dignity. A single, quick but conscious grab is enough.
• Para 1b – cyberflashing (since 1 September 2025): sending unsolicited images of human genitals, including edited or AI-generated material (see the next section).
• Para 2 – a public sexual act: a sexual act in public that can cause legitimate offence through direct perception by a larger group of people.
• Para 2a – knowing participation in a gathering: knowingly taking part in an assembly aimed at sexual harassment where harassment then actually occurs.
• Para 2b – joint commission by a group: committing the harassment in an arranged combination with at least one other person – the most serious variant.

Subsidiarity: § 218 applies only where the act is not threatened with a stricter penalty under another provision. If the conduct amounts to sexual coercion (geschlechtliche Nötigung, § 202 StGB) or sexual abuse (§ 205 StGB), the person is punished under those graver provisions instead – and the case is then heard not by a single judge, but by a lay-judge panel (Schöffengericht).

Cyberflashing: unsolicited images under § 218 para 1b

Since 1 September 2025, sending an unsolicited „dick pic“ is a criminal offence in Austria under § 218 para 1b StGB. Anyone who harasses another person by intentionally sending them, via telecommunications or a computer system, an unsolicited image that essentially shows human genitals commits the offence – punishable by up to six months‘ imprisonment or a fine of up to 360 daily rates.

The provision was introduced to implement EU Directive 2024/1385 on combating violence against women and domestic violence. Its reach is deliberately broad. It covers not only genuine photographs but also comparable edited images and artificially created material – including AI-generated pictures. And it does not matter which channel is used: SMS, MMS, email, instant messages, social-media postings and transmission via AirDrop or Bluetooth are all caught. Two elements are essential: the transmission must be unsolicited and intentional. Where an image was requested, or where there was no intent to send, the offence is not made out – and that is where the defense begins.

What happens after a report is filed

A § 218 case runs through four stages, and it is decided far earlier than most people expect. Unlike graver sexual offences, in its core variants it is heard by a single judge (Einzelrichter) at the district court (Bezirksgericht) – not by a lay-judge panel; only the group variant (para 2b) goes to a single judge at the regional court (Landesgericht). At every stage there are points for the defense; the earlier a lawyer is involved, the more can be done.

The investigation stage is where the direction of the whole case is set. If you have received a police summons, the questioning that follows is not a chance to „clear things up“ – it is evidence-gathering, and it belongs in the hands of a lawyer first.

Prosecution requires the victim’s authorization (Ermächtigungsdelikt)

In its core variants – para 1, 1a and 1b – § 218 StGB is an offence prosecuted only on the victim’s authorization (Ermächtigungsdelikt). The prosecuting authorities may investigate and charge only if the alleged victim expressly grants an authorization (Ermächtigung) to prosecute. Without it, no criminal proceedings are opened – even if the police learn of the act by other means.

This has real consequences in practice. If the authorization is not granted, or is withdrawn, the proceedings end. The authorization can be withdrawn right up to the close of the taking of evidence at first instance (Schluss des Beweisverfahrens, § 92 para 2 StPO) – that is, well into the main trial itself. But there is a catch that cuts the other way: once withdrawn, it cannot be granted again. For the defense, the authorization is therefore often the very first checkpoint. Was it validly given? Might it have been given under pressure? Does it actually cover the specific conduct charged? These questions can decide the case before it ever reaches the evidence.

Penalty, criminal record and diversion

The basic offence under § 218 carries up to six months‘ imprisonment or a fine of up to 360 daily rates; the group variants rise to one and then two years. A conviction is entered in the criminal record (Strafregister). But for a first offence, there is often a route that avoids a conviction altogether: diversion.

Diversion: a settlement without a conviction

Diversion (Diversion) is a resolution of the case without a formal conviction and, crucially, without any entry in the criminal record. It is generally available for § 218, because diversion is possible where the offence does not carry more than five years – and § 218 is well below that. The requirements are that the facts are sufficiently clear, that the accused’s guilt is not to be regarded as severe, and, typically, that the accused has no relevant prior convictions. In practice diversion can take the form of an out-of-court settlement with the victim (außergerichtlicher Tatausgleich, ATA), a fine (Geldbuße), a probationary period or community service.

What a criminal record entry means

A conviction leaves a mark that reaches well beyond the courtroom – it can matter when changing jobs, applying in the public sector or seeking a visa. A criminal record certificate will show it. By contrast, a diversion, an acquittal or a discontinuance produces no entry at all. That gap is exactly why the strategy chosen in the first weeks – conviction versus diversion versus acquittal – is worth so much.

Defending against a § 218 charge

An effective defense under § 218 attacks on several fronts. Unlike graver sexual offences, where physical evidence such as DNA is often present, a harassment case frequently comes down to one word against another. That „he said, she said“ situation is a burden for the prosecution – and an opportunity for a precise defense.

1. Lack of intent

The accused must have acted intentionally. Where he can credibly show that he assumed the contact was mutual – for instance between long-standing acquaintances, or in a situation he read as a flirt – intent (Vorsatz) can be denied. This is a real, and often decisive, line of argument.

2. The intensity threshold is not met

Not every touch fulfils the offence. The sexual act must reach a certain intensity; a fleeting touch, accidental body contact or a brief tap is not enough. The defense can contest exactly this – whether what happened crosses the criminal threshold at all.

3. Check the authorization

As set out above, no proceedings may be conducted without a valid authorization from the alleged victim. Testing its formal validity is often the first defensive step, and sometimes the last one needed.

4. Contradictions in the account

In one-word-against-another cases, contradictions in the complainant’s statements can be decisive. Was the incident described differently on different occasions? Are there witnesses who confirm another version? Are there chat logs or messages that contradict the accusation? Securing that material early is essential.

5. Aim for diversion where appropriate

Where the facts are essentially established and an acquittal is unrealistic, a diversion can be the best available outcome: no criminal record, no public trial, no conviction. Whether its conditions are met has to be examined case by case.

Criminal law vs. the Equal Treatment Act: harassment at work

The term „sexual harassment“ exists in two very different bodies of Austrian law: the Criminal Code (§ 218 StGB) and the Equal Treatment Act (Gleichbehandlungsgesetz, § 6 GlBG). The difference matters, especially for incidents at the workplace – the setting most English speakers have in mind.

The Equal Treatment Act defines sexual harassment far more broadly than criminal law. Under the GlBG, conduct „belonging to the sexual sphere“ that impairs a person’s dignity is enough – so verbal harassment, suggestive looks, sexist jokes or repeated unwanted invitations are covered. None of that is criminal under § 218 StGB on its own, but it can carry consequences under employment and equal-treatment law: damages, dismissal of the harasser, and liability of the employer.

For the defense, the lesson is clear: conduct that qualifies as harassment under equal-treatment law is not automatically a crime. The criminal threshold lies considerably higher, and a workplace complaint under the GlBG is not the same thing as a § 218 charge.

Frequently asked questions on sexual harassment under § 218 StGB

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