The Doctor vs. #MeToo

How an HIV specialist in Germany is using media law to erase reporting of sexual abuse allegations against him

One day in June 2019, Juliane Löffler was at her desk in BuzzFeed Germany’s Berlin office when a notification popped up on Slack. A colleague had sent her a link to a Facebook post that was circulating online. In the post, a prominent figure of Berlin’s queer scene revealed that his doctor had assaulted him. It was time, he wrote, to break the silence. Löffler, a reporter who covers the LGBTQ community, noticed that although the doctor wasn’t named, many people in the comments seemed to know who he was. Then she saw that several people had written that the same thing had happened to them. Löffler began making inquiries. A few weeks later, she ran into Thomas Vorreyer, a political reporter at Vice Germany, and learned that he had seen the post and was also investigating. The two journalists decided to combine their efforts.

Over the next ten weeks, Löffler and Vorreyer uncovered decades of abuse allegations, beginning in the late 1990s and continuing to the present. In their extensive report, published online in German in two parts, on September 6 and 7, 2019, the reporters revealed for the first time in the media that a doctor—an internationally respected HIV specialist referred to in their articles as “Heiko J”—had allegedly abused and in some cases assaulted patients in his care, with indications that there could be as many as several dozen victims. Several of the men were young, lacked German citizenship, and did not have health insurance.

Löffler and Vorreyer documented thirty possible cases of abuse for their investigation. They included in-depth stories of abuse allegations from five different men—changing their names to protect them from legal repercussions—and corroborated their accounts. They also disclosed that the doctor was the subject of a criminal investigation opened in 2014; the trial will take place later this year. The two journalists reached out to “Heiko J” for his side of the story, but the doctor refused to answer specific questions, claiming that he could not respond without knowing the accusers’ names. Instead he sent a blanket denial of the allegations through his lawyer, and instructed the journalists not to quote from his reply. (The doctor adopted the same tactic when I reached out to him during my own reporting, and declined to provide a response for publication.) 

Immediately following the articles’ publication, the doctor filed a cease and desist order, first against Vice and then BuzzFeed, as well as Löffler and Vorreyer, in Berlin’s regional court. Both media companies were forced to take the articles down. Then, the following month, the court ruled that BuzzFeed/Vice had violated German law regarding reporting on criminal allegations. The investigation had to remain offline for good, unless an appeal could be won. 

Meanwhile, in the months that followed, more than thirty-five additional people reached out to Löffler and Vorreyer to say that they had been abused, too.

In the years preceding the BuzzFeed/Vice story, some men had tried to speak publicly about alleged abuse, including the person whose initial Facebook post alerted the journalists; they were all successfully quieted. The doctor has also taken legal action against two outlets—Der Spiegel and Queer.de—that published articles about the alleged abuse, even though the articles did not identify him by name. And posts on online doctor review portals mentioning abuse allegations against him have disappeared. The full name of “Heiko J’’ is Heiko Jessen. But because the reporting around him has not used his full name, when you Google Jessen, all you are likely to see are links to his private practice and profiles of his work in German media and in the New York Times. Today, Jessen is still a practicing HIV specialist. In an era of #MeToo reckoning, how is it possible that the voices of so many people have been silenced?

 

One man told the reporters that, during the ordeal, he sat still and waited for it to be over. He needed his medicine.

 

In the 1980s, when people started dying, St. Matthew’s graveyard in Schöneberg became a place where a community could grieve. Schöneberg is a Berlin district known in German as the Rote Insel (“Red Isle”), a sly reference to its historically left-leaning inhabitants. In the eighties and nineties, it was the center of the city’s gay scene. In the middle of St. Matthew’s is an aids memorial, with a marble wall listing the names of those buried there. In mid-July, the memorial was quiet. I had come to St. Matthew’s to better understand the history of HIV in Berlin, and how one doctor had accumulated so much power.

The first HIV cases were reported in Berlin in 1983, two years after the United States’ first documented cases. Initially thought of as an “American disease,” the epidemic was met in Germany with extreme public fear—as well as a marked indifference toward the people struggling to cope with a deadly, little-understood virus. Many doctors did not want to treat people living with HIV; others were interested in them only as research subjects. As Michael Bochow, a social scientist, recounts in his article “Reactions of the gay community to aids in East and West Berlin,” some doctors tried to conduct medical experiments on people living with HIV—this included brain surgery on a dying man that was only halted after protests. By 1992, some 9,140 Berliners had been diagnosed with HIV, but there were few doctors with specialized HIV knowledge, and, as was the case elsewhere, homophobia mixed with stigma to create a powerful barrier to care.

Against this backdrop, Heiko Jessen opened a specialized HIV clinic in 1994. As an openly gay man himself, Jessen promoted his practice as “catering to the wishes and needs of gay patients.” For a while he lived in the same building that housed his office. 

Jessen quickly gained a reputation for providing a nonjudgmental approach to sexual health and delivering high-quality medical care. His clinic expanded to include general and sports medicine, as well as other infectious diseases such as hepatitis. If you were living with HIV in the first decades of the disease, your relationship with your doctor was extremely important: the early drugs approved to treat HIV came with high levels of toxicity and severe side effects, requiring regular monitoring. Jessen’s clinic was open seven days a week, and it was said he never turned anyone away, even if they did not have health insurance. (In the early years of the epidemic, the price of HIV treatment without insurance could easily reach the equivalent of several thousand euros a month.) Jessen became known as the “aids pope” of Berlin.

In 1998, Jessen started running his own clinical research trials; as a result, he had access to new versions of medicines before they hit the market. Jessen championed the early use of antiretroviral treatment for HIV, which put him at the vanguard of medicine (the World Health Organization adopted this recommendation for all HIV patients only in 2015). He became well known outside Germany, traveling and giving talks at the International aids Conferences. In Berlin, Jessen’s expertise was highly sought after: he taught a class at Humboldt University about how to deliver an upsetting diagnosis and partnered with the Charité teaching hospital; more recently, an emergency room referred at least one patient to him to obtain post-exposure prophylaxis.

As Jessen rose to global fame, though, troubling stories began to emerge. Patients reported to LGBTQ and HIV organizations, as well as within the gay community, that Jessen had touched them inappropriately and in some cases sexually assaulted them. The reports often followed a similar chronology: a patient would go in for an HIV test or a sinus infection, and Jessen would allegedly tell him that he needed to perform a full-body examination or a rectal exam, giving no medical justification. According to the BuzzFeed and Vice articles, Jessen sometimes allegedly kissed patients, masturbated them, or, in one case, tried to force oral sex. 

The Schwulenberatung (Gay Counseling Center) started hearing about Jessen’s behavior in the late 1990s. In June, as Berlin loosened its coronavirus lockdown, I visited their building, on a quiet, tree-lined side street in Charlottenburg, to talk to a counselor who has worked at the center for more than twenty years. The counselor, who asked not to be named because he had been previously threatened by Jessen and his lawyer and fears legal repercussions, told me he repeatedly heard from clients coming through his office that Jessen had abused them or acted inappropriately. As a result, the organization does not refer any patients to Jessen. The center is also featured in the BuzzFeed and Vice investigation as one of several LGBTQ organizations that have tried to take action against the doctor. (In 2014, the counselor said, representatives from the Schwulenberatung confronted Jessen and his brother, who is also a doctor and co-owner of the practice; Jessen promised to change.)

I asked the counselor if the men who told him about Jessen fit a certain profile. “It was mostly people who were first coming out, not having self-esteem, not speaking German, having mental health problems, or addiction, working in prostitution…it was always vulnerable people and mostly young,” he said. A nonprofit worker interviewed by Der Spiegel said that in some cases the men sold sex, putting them at higher risk for HIV and in need of testing or treatment. 

In their stories, Löffler and Vorreyer documented a similar pattern: most of the men who came forward were in their early or mid-twenties at the time of the alleged incident. Some had recently immigrated and did not hold German citizenship. The men said they had little to no understanding of the German legal system and did not think they would be believed if they went to the police. One man told the reporters that, during the ordeal, he sat still and waited for it to be over. He needed his medicine.

A doctor is always in a position of power over a patient; all of these men had even less. The lack of other HIV practices in Berlin added to the imbalance. Vorreyer told me, “Some people said they experienced abusive behavior and kept going there, because he was a good physician and always available.”

 

In Germany, the ethical conduct of doctors is monitored by state medical associations called Ärztekammern (“chambers of physicians”). An Ärztekammer is responsible for investigating malpractice, and it can initiate a legal investigation; in the case of sexual assault allegations, a guilty verdict is typically issued by the court before a license is removed. (In a confusing division of bureaucracy, it is a federal government authority that ultimately revokes a license, not the Ärztekammer.) By as early as 2002, Löffler and Vorreyer reported, the Berlin Ärztekammer had begun its first internal proceedings against Jessen. Yet it wasn’t until 2012—ten years later—that a report from a youth welfare agency about Jessen’s behavior catalyzed an official investigation, during which the Ärztekammer held closed-door proceedings between Jessen, his lawyers, and the victims.

Jessen’s lawyers ultimately sent a declaration to the Ärztekammer that promised he would not see patients alone or behind a closed door. He also said he had started seeing a therapist. In 2013, a sexual assault claim was filed with the police independently of the Ärztekammer investigation. The police ended their investigation in 2014, turning over their evidence—as well as evidence provided by the Ärztekammer—to Berlin’s public prosecutor’s office. In 2016, the public prosecutor brought charges against the doctor on behalf of five victims. But the charges against Jessen were kept out of public knowledge, and patients continued to visit Jessen’s practice without any warning of the allegations.

I asked the Ärztekammer a number of questions about its handling of Jessen’s case, but the press spokesperson wrote in an email that Germany’s data protection laws prevented it from commenting. However, when I asked whether the case had caused internal reflection about better monitoring and responding to allegations of sexual misconduct among doctors in Berlin, the answer was clear: “It can be reported that there has been no reason to change internal procedures in the area you mentioned,” wrote the Ärztekammer spokesperson in late July.

In Germany, sexual assault cases typically see a court date within a year. Jessen’s case is now approaching five. The case is complex, involving multiple witnesses, and was delayed due to the coronavirus pandemic. But according to the Der Spiegel article, the chief complicating factors in bringing the case to court are the high-profile person involved and the litigiousness of Jessen’s lawyer. A court spokesperson told Der Spiegel that because the trial will be “controversial,” eleven days would need to be blocked off for it—a window of time that is apparently difficult to find on Berlin’s crowded judicial calendar.

Because of the delay, at least one of the allegations risks no longer being admissible in court. 

 

Until 2019, almost nothing had been published in the German mainstream media about sexual assault in the gay community.

 

In 2013, as the police were investigating Jessen, a public debate on sexism took hold in Germany. Laura Himmelreich, a journalist, wrote that Rainer Brüderle, a politician she was profiling for the newsweekly Stern, had told her she could “fill out a dirndl.” (A dirndl is a traditional dress from the Alps—think Swiss-milk-maid stereotype—that emphasizes a woman’s breasts.) Himmelreich’s story led to a social media campaign organized around #Aufschrei—“outcry”—that is widely considered the first stirring of the German #MeToo movement.

The #MeToo campaign in the US, which gained widespread media attention in 2017, raised critical questions around workplace relationships and other power dynamics, and drew attention to the pervasiveness of sexual assault. In Germany, the movement was more subdued. Some high-profile media stories did come out, the first of which was a January 2018 investigation by the newspaper Die Zeit detailing the stories of three women who accused film director Dieter Wedel of sexual misconduct, including one allegation of rape. Der Spiegel also pursued MeToo stories; in May 2018, the paper exposed a culture of widespread sexual harassment and abuse of power in the TV industry, including sexual assault allegations against movie executive Gebhard Henke. 

#MeToo in Germany unleashed an intense backlash. Rather than considering abuses of power, the media debates tended to circle around “witch hunts” and privacy rights. Some Germans didn’t see their society reflected in the MeToo campaign—dismissed as imported from across the Atlantic—or rather chose not to. Although Die Zeit won the prestigious Leuchtturm-Preis (Lighthouse Award) for its Wedel story, the publication received an outpouring of angry mail from its older, mostly conservative subscribers. After the Henke allegations broke in Der Spiegel, Die Zeit gave Henke a three-page spread to tell his side of the story, with a splashy headline: “Now my reputation is ruined.” In the interview, he accused the women of lying and Der Spiegel of shoddy reporting.

Ann-Katrin Müller, a reporter at Der Spiegel who worked on the Henke story and other MeToo investigations, told me that a large part of the German public had failed to grasp that MeToo was fundamentally about power differentials.

“I think MeToo got misunderstood a lot. Maybe we as journalists didn’t explain the power factor enough.… Suddenly everything was about MeToo, even a bad compliment in a bar. We had all these stupid debates: Is flirting impossible now? Can a man still talk to a woman alone? Can a colleague say that you have a nice dress?” said Müller when we spoke over the phone in early July. “The conservative and extreme right used these kinds of examples to undermine MeToo, because they don’t want the power balance to change, and I think they were quite successful in changing this debate.”

BuzzFeed Germany took a less gun-shy approach to MeToo than did some of its media counterparts. The company launched its entertainment section in 2014, then opened a small newsroom in 2017, bringing on Daniel Drepper as editor in chief. Drepper is a former investigative journalist who helped found Correctiv, Germany’s first nonprofit investigative newsroom. He was already familiar with BuzzFeed US’s model, having studied journalism at Columbia University, and was eager to focus his team of four people—which included Löffler—on areas where they could have an impact.

“We heard from many people that it was difficult to investigate MeToo stories,” said Drepper. “People tried to pitch in their newsrooms, but the editor or editorial section said ‘We’re a serious newspaper—why would we go after allegations?’ I think a lot of people don’t understand that this is not about smearing people.… When we publish something, we have as many sources as a story about national security.”

Drepper and his team exposed abuses of power in industries overlooked by MeToo. They reported on how strawberries in German supermarkets are harvested by migrant workers in Spain who experience repeated sexual assault, and how Ukrainian women are lured to Germany under false promises and then trapped in exploitative working conditions.

Drepper credits BuzzFeed management for being supportive of these slower, more resource-intensive investigations. “On news we didn’t have traffic laws or articles per month. We could do what we wanted as long as we made an impact. They gave us a lot of autonomy.” 

When Löffler approached Drepper with the tip that there might be a doctor in Berlin abusing his patients, Drepper was immediately intrigued. “Juliane and Thomas reached out to lots of people, and really quickly they came back to us saying, ‘Everyone is telling us this is true; everyone says that they know someone, and that it’s been an issue for decades,’ ” he said. “That’s when we decided we should invest in this.”

 

Löffler, thirty-four, and Vorreyer, thirty, had worked on smaller investigations before, but nothing that approached the scope or scale of the allegations against Jessen. As soon as they began reporting, the story very quickly unfolded. “The first source revealed so much information to us, and pointed us to so many contacts,” said Löffler. “It was like this domino effect, where from every interview we got at least one or in some cases three or four new sources.”

Until 2019, almost nothing had been published in the German mainstream media about sexual assault in the gay community. As they were reporting, Löffler and Vorreyer noticed two trends that help explain this absence: many men told them they did not experience the alleged assault as traumatizing, and others were hesitant about coming forward because they did not want to reinforce existing prejudices in German society of gay men as overly sexualized. “This showed us how much sexualized violence has been perceived as ‘normal’ within the LGBT* community for a long time and sometimes is still perceived today,” Löffler and Vorreyer told me, using a form of the LGBTQ initialism popular in Germany. Even though rumors about Jessen had been circulating since the 1990s, media outlets had not caught hold of the story. By the time Löffler and Vorreyer started contacting members of the gay and broader queer community, though, many were willing to speak out.

“I think it’s a man thing to ignore it, to feel ashamed and not tell anyone,” said the counselor at the Schwulenberatung. “It’s about shame. Berlin is the gay sex capital of the world; there’s a lot of sex parties…not respecting boundaries occurs in some places. Maybe that’s one reason why gay men didn’t take it too seriously at first, because they think they have to accept it. But it’s good that we start this kind of discussion; it’s not okay to be molested by your doctor that you trust.”

As they wrapped up their investigation, BuzzFeed and Vice had to make a decision about whether to publish Jessen’s name. Germany’s legal protections concerning media reports on criminal allegations are radically different from those in the US. The German constitution articulates a right to privacy for each individual. In a separate article, it protects free speech and the freedom of the press. These principles often bump up against each other. One can only report on a person’s “intimate sphere”—such as someone’s sexual behavior—if there is an overriding public interest. Jessen’s case, BuzzFeed and Vice thought, met that standard.

But there were additional considerations. In criminal trials, German law presumes innocence unless a guilty verdict is handed down by a judge. This is similar to the US legal system; however, in Germany, the presumption of innocence is also applied to press coverage. While the media is allowed to report on criminal trials—which are considered to fall within the “social sphere”—the law protects suspects from media coverage deemed to stigmatize them unfairly before a verdict is reached. For example, the media is rarely allowed to publish photos of someone in custody, unlike the “perp walks” commonly publicized in the US.

Precisely because the articles had presented such a massive amount of detailed evidence against Jessen, the judges said, no reader could come to the conclusion that he was innocent. The reporting was ‘not balanced.’

Before publishing the Jessen story, BuzzFeed and Vice consulted a German legal doctrine on “suspicion reporting” that outlines four criteria journalists must comply with: the article must make the public aware the person could be innocent; the journalists must have substantial material evidence in addition to reporting that a trial is ongoing; the suspect must have ample time to respond to the allegations, and their response must be included so that the story is balanced; and a person’s name can only be printed if there is an overwhelming public interest.

For Drepper, the decision was fairly straightforward. “If we legally can, and we think it’s needed, my belief is that we should publish the full names of potential perpetrators,” he said. Lawyers for the media companies agreed that the article met the criteria for suspicion reporting, but they ultimately decided on a compromise. Since the case was still making its way to trial, they would publish only the first name and last initial—this would identify Jessen to the HIV, medical, and gay communities, but not necessarily to everyone he came in contact with, preserving some semblance of privacy.

The journalists were also reasonably certain that publishing their investigation meant they would be sued, since Jessen had aggressively gone after victims who spoke publicly about their experience, and since other publications had experienced reprisal. Jessen’s lawyer, Johannes “Jony” Eisenberg, is known for his aggressive intimidation strategies in and out of the courtroom. Despite being a relatively small newsroom, BuzzFeed Germany had a generous budget for legal fees and had already worked with a top law firm in Berlin, so they were in the unique position of being able to take on the risk.

The journalists’ deliberations proved prescient. On September 10, 2019, five days after the first article appeared, Eisenberg filed the first of several complaints in the Berlin regional court. Eisenberg is well known to the court: although he could have filed suit in any regional court in Germany, the Berlin court, in addition to being his home turf, is known to be sympathetic to press privacy violation cases. He alleged that Jessen’s right to privacy had been violated and sued. The court awarded him a temporary injunction requiring the first article to be removed from BuzzFeed’s and Vice’s websites; two days later, another injunction followed for the second article—nor could either reporter or company publish further about the allegations. A court ruling would follow. 

Despite the blow, Löffler and Vorreyer felt they had a fair chance to win the case and reinstate their investigation, given the extent of their evidence. Other published MeToo investigations had had less—the Die Zeit story on Dieter Wedel contained three testimonies of alleged abuse, and the Der Spiegel investigation into Gebhard Henke contained six. Löffler and Vorreyer had five in-depth testimonies and indications that there were dozens more. They immediately got to work preparing for the hearing, compiling a trove of documentation: timelines and folders of emails, letters, WhatsApp messages, social media posts, and interview transcripts. The journalists prepared to turn over most of their reporting and gather sworn affidavits from people who had appeared anonymously in the stories. This meant that Jessen could now see the identities of the men who had spoken out against him.

Löffler and Vorreyer woke up nervous on the morning of October 29, 2019: it was their first time in court. BuzzFeed lawyer Jan Hegemann had briefed them on what to expect, but Eisenberg was a knowledgeable, and formidable, adversary. Both Eisenberg and Hegemann are well established in media law circles. Eisenberg is a company lawyer for taz, Berlin’s most left-leaning newspaper, and Hegemann has represented Axel Springer, which owns German tabloids such as Bild and Die Welt. Despite their similar experience, the two men have opposing styles in court: Hegemann exhibits a courteous and professorial approach (he also teaches law at the Free University of Berlin), while Eisenberg enjoys more notoriety—in 2011, Julian Assange hired him to go after a former WikiLeaks colleague—and is famously bullish. The Der Spiegel article called Eisenberg “a bulldozer that flattens a house of cards—and backs over it again to be on the safe side.”

Vorreyer and Löffler arrived at the regional court, an imposing neobaroque building on Berlin’s western edge, along with their editors in chief: Felix Dachsel, of Vice Germany, and Drepper. About two dozen people were in attendance at the proceedings. In addition to the journalists, editors, and lawyers of BuzzFeed and Vice, there were some media colleagues and LGBTQ nonprofit workers, including the Schwulenberatung counselor. Several of Jessen’s colleagues were present. Jessen did not appear. Eisenberg wore a leather motorcycle jacket; he chose to sit for the proceedings, leaning back in his chair with his legs spread wide. Hegemann, who wore a suit, gave his arguments standing up.

Eisenberg’s behavior in court that day lived up to his reputation. He pointed his index finger at the journalists and accused them of lying. He called them Schmierfinken (“hacks”) and “muckrakers,” a sling seemingly implying they were engaged in American-style reporting that was beneath the standards of German journalism. “He said stuff like, ‘Oh, you should go back to your Trump country, you can do it over there but not here,’ ” said Drepper. (Apparently Eisenberg did not realize that BuzzFeed and Vice were registered German media companies.) Despite Eisenberg’s behavior, the panel of three judges did not interrupt him or request that he stop shouting; according to one account, at different points they smiled at his eruptions. Hegemann countered Eisenberg’s aggression by patiently sticking to the facts of the case.

The argument that Eisenberg presented at the hearing was built around the idea that his client was the subject of a kind of conspiracy. He said the witnesses had colluded against Jessen, calling one the “ringleader.” He said the allegations were due to envy. He attacked the credibility of alleged victims based on information he had pulled from their medical records, calling them drug users and prostitutes; in the case of one man, Eisenberg revealed that Jessen had treated him for multiple STIs, using the disclosure to contend that the doctor could not possibly have been attracted to such a patient. 

The judges themselves seemed confused regarding certain details of the story. Although BuzzFeed and Vice submitted affidavits from two people who said Jessen abused them in the years following his declaration, one judge remarked that this couldn’t have been true, because Jessen had signed the agreement with the Berlin Ärztekammer in 2014 pledging not to see patients alone or in a locked office—seeming not to account for the possibility that Jessen could have disregarded it.

When the judges finally brought the hearing to a close it was clear they would rule in favor of Jessen. Löffler and Vorreyer were dismayed. “You know when you have a bad feeling, and then there is a moment when you realize that what you feared will come true? That’s how it felt,” said Löffler. In regard to the four legal criteria for suspicion reporting, the judges said that BuzzFeed had met three of the conditions: it had enough evidence to publish; Jessen had been given adequate time to respond to the allegations; and the case was in the public interest. But on the fourth criterion—the obligation to maintain presumption of innocence—the judges said the journalists had failed. Precisely because the articles had presented such a massive amount of detailed evidence against Jessen, the judges said, no reader could come to the conclusion that he was innocent. The reporting was “not balanced.” They dismissed the consistent inclusion of words like “alleged,” calling such phrasing cosmetic, even though it is widely used by journalists both within and outside of Germany. Finally, the judges took issue with the story’s style, calling the level of detail provided about the assaults “voyeuristic.” 

When the hearing concluded, a stunned Löffler and Vorreyer went to a restaurant nearby with their colleagues to regroup. While it was disappointing for them that their story had to remain offline, they were more worried about telling the men who had trusted them what had happened in the hearing. They thought also of the new people who had contacted them with allegations about Jessen—and whose stories would have to remain unpublished, too. 

For Jessen, on the other hand, the day was a double victory. Immediately following the BuzzFeed/Vice hearing, the court heard Jessen’s defamation suit against the person whose Facebook post had inspired the article. Even though the post had not mentioned Jessen by name, the court ruled in Jessen’s favor, because the man could not “prove” he was assaulted. He was ordered to pay his and Jessen’s court fees: an estimated three thousand euros.

 

‘How are you supposed to write about sexual misconduct if you don’t write about the sexual misconduct?’ Löffler asked.

 

As 2020 began, the novel coronavirus started to spread across Europe, and Jessen continued to hold a public position as a medical expert. In March, he was interviewed by German media about his office’s response to the coronavirus, and in July, his most recent research was published in The Lancet, a leading public health journal. Some German papers had covered the case, but they had refrained from printing Jessen’s name; other media seemingly remained in the dark.

In the meantime, the economic fallout hit BuzzFeed; the company laid off 5.7 percent of its US workforce and closed its UK and Australian operations. In April, BuzzFeed Germany was put up for sale, and in August it was acquired by the Ippen-Gruppe. Löffler stayed at BuzzFeed, where she is now a senior reporter. Vorreyer moved from Vice to MDR Sachsen-Anhalt, a German public broadcaster. They remained puzzled by the court’s ruling.

“It’s made me question how to write stories,” Vorreyer told me in June, when we met at a Turkish coffee shop. “It’s now always in the back of my mind.” He described the stress and uncertainty that the case had caused him in the past year. “I think it’s definitely helped within the community, from what I know, to make conversations about sexual assault more sincere. But now there’s a belief that it won’t necessarily help people to come out with their stories.”

Löffler, too, feels her work was impeded. “How are you supposed to write about sexual misconduct if you don’t write about the sexual misconduct?” she asked. Still, the two journalists do not regret their decision to publish the investigation, including using a partial name for Jessen in the articles. “Sexual misconduct is not committed by systems, it’s committed by people holding power or in powerful positions,” said Löffler. “I think in order to hold them accountable, which is ultimately what I want to do as a journalist, it is necessary to name names.”

Though shaken, Löffler and Vorreyer hadn’t given up. Soon after the ruling, BuzzFeed and Vice appealed the decision to Berlin’s highest court. As Berlin’s long summer days shortened into fall, the journalists received a new hearing date: December 10, 2020. More than a year after their articles were banned, they would have another chance to argue for their right to publish them. 

 

On the morning of December 10, I walked through clusters of barren trees extending their branches toward a slate-gray sky at the entrance of the Berlin Kammergericht, the city’s appeals court. The court, which originated in 1468 and is considered the oldest in Germany, is located inside a neobaroque building whose ornate edifices and manicured grounds belie a painful history: in August 1944, the building became the base of Hitler’s “People’s Court,” where hundreds of men resisting the Nazi regime were sentenced to death or imprisonment in show trials. The Kammergericht is also located in Schöneberg, a fifteen-minute walk from Jessen’s office. 

Jessen had shown up this time, dressed in a black suit and short black boots, carting a pile of manila folders. The reporters looked up as he entered but appeared composed; masks shielded their facial expressions. As the presiding judge, Susanne Tucholski, began her opening statement, it became evident that she would take a more measured perspective on the case than had the judges of the previous hearing. Tucholski acknowledged that the court was facing a decision without precedent in Germany. “This is a complex case because it’s about conflicting interests—press freedom and the protection of personality rights,” she said, carefully going through the reasoning. But Tucholski expressed misgivings about the same criterion flagged by the lower court—whether or not the articles were prejudicial—and singled out the narratives of the violations as problematic. She mentioned the case of German television meteorologist Jörg Kachelmann, who was falsely accused by one woman of rape and acquitted in a criminal trial, but was so damaged by the tabloid media coverage of his case, which disclosed information about his sexual preferences, that he moved to Switzerland. Tucholski said that the narratives before her contained “intimate details,” some of which were not relevant to the criminal charges. She singled out a line in the articles in which Löffler and Vorreyer review accounts of alleged assault collected by the Ärztekammer—“In their mass and brutality [the accounts] are so hard to bear that they can hardly be read through without taking breaks”—as one instance where she felt the text was clearly prejudicial. She considered descriptions of the assaults, too, “on the edge” of what was, in her opinion, permissible. Ultimately, she said, it was unlikely anyone could read the narratives and think that the doctor was innocent.   

Eisenberg was no less combative than in the previous session, speaking out of turn and making false statements to vilify Jessen’s former patients. At one point he slammed his hand on the table. This was a “Vernichtungskampagne!” he said—a military destruction campaign—and claimed that members of the “community” (presumably, gay) were waging an intentional crusade to bring down the doctor. He also continued his attacks on Löffler and Vorreyer, calling the articles “execution-style journalism.” Tucholski was unimpressed: several times she admonished Eisenberg to stop turning in circles with his arguments. Jessen occasionally looked over his shoulder and surveyed the room.

After almost two hours, Jessen addressed the panel of judges himself. “This is my first time at the court because there has never been a ruling—I have never been convicted of doing anything wrong,” he began in a calm tone. “There are just five individuals out of fifty thousand happy patients who—I will arrogantly claim—love me…I have no idea why these individuals attack me.”

He continued, his voice becoming aggrieved as he rattled off a litany of complaints including how he had lost research contracts with American pharmaceutical concerns. He presented himself as self-sacrificing, helping the most vulnerable people in Berlin, and stated, without evidence, that the media had a vested interest in destroying his practice. He concluded: “I just ask you to see the overall situation. This huge practice, which I built up from nothing, has also won international awards. I ask you to see the overall aspect and to curb this campaign of destruction.”

The next morning, the official verdict was issued: the ban was overturned, but the testimonials describing the assaults cannot be republished. For BuzzFeed and Vice, it was a bittersweet victory. “We had very good reason to go into such detail in our story,” Vorreyer said outside the courthouse, as a cold wind swept through the gates. “It was necessary to distinguish between what was a medical procedure, and what was assault.” 

 

The German judicial system appears to now be making a distinction between reporting on sexual violations and other types of crimes—a separation that historically has prevented social reckoning.

 

A few days after the ruling, Drepper posted on Twitter that BuzzFeed Germany planned to republish a version of its original investigation. But he also worried that the decision would negatively affect the media’s ability to write about sexual discrimination and assault. “How should we describe the nature of the allegations? Are we no longer allowed to state important details that have been researched and secured by secondary sources?” he wrote. 

In order to present a balance of perspective and preserve a presumption of innocence that would satisfy the judges, one interpretation is that the journalists would have had to withhold evidence from the public. Beyond that, the German judicial system appears to now be making a distinction between reporting on sexual violations and other types of crimes—a separation that historically has prevented social reckoning.    

In the US, defamation lawsuits are increasingly being brought against people who speak out about sexual assault. But about thirty states have laws that allow defamation cases to be dropped if the issue is of public concern, protecting victims against retaliatory lawsuits. No such legislation exists in Germany. 

For Jürgen Dahlkamp, a Der Spiegel senior investigative reporter, the case affects the ability of media outlets with fewer resources to exercise press freedom. “It’s not a problem for Der Spiegel to go to court, but it’s a problem for a smaller or regional paper.” And, presumably, for freelancers. Dahlkamp’s article on the Jessen case ran in the magazine on a Saturday in September 2020; on Sunday, Der Spiegel received a notice from Eisenberg to remove the story or face consequences: they are now working their way through the judicial system.

The case also reveals a dangerous lapse in Berlin’s response to sexual misconduct allegations among medical staff. It’s reasonable for the city to be invested in a fair and thorough process. But given the long delay in criminal cases reaching trial, it’s worrisome that there is no corresponding effort to protect the public, such as a temporary suspension of Jessen’s medical license, until a verdict is reached in court. Right now, the press is the only way current or prospective patients can be informed of abuse allegations before they walk into a doctor’s office.

Many of the men interviewed by Löffler and Vorreyer told them that they hadn’t thought the assaults were a big deal at the time. It had happened before, some said. But MeToo changed their minds. They now thought their stories were worth telling, because they didn’t want other young people to experience the same treatment. The Berlin legal system has ruled that this desire wasn’t enough: for now, their individual voices will not be heard.

THE MEDIA TODAY: Press freedom and the Arab Spring, ten years on

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Caitlin L. Chandler is a long-form journalist and writer. Her work has appeared in the New York Review of Books, The Guardian, and Guernica. She is a recipient of the International Women’s Media Foundation 2020 Fund for Women Journalists.

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