Switzerland redefines sexual violence
- victimepasseule
- Jul 6, 2022
- 3 min read
On June 7, 2022, the Swiss Council of States voted 25 to 18 to redefine the notion of rape, notably removing the requirement for coercion. Of the two proposed models under debate, the Council chose the “no means no” standard over the “yes means yes” approach, which was favoured by left-wing advocates and feminist groups. Lawyer Céline Jarry-Lacombe from Vevey (VD) explains the implications of this decision.
Nearly ten years after ratifying the Istambubl Convention, Switzerland is finally adapting its laws on sexual violence. What are the key aspects of this revision?
The revised articles 189 (sexual abuse and indecent assault) and 190 (rape) in the draft of the criminal code (P-CC) are at the core of these changes. These provisions cover acts of a sexual nature that a perpetrator commits against a person or coerces a person to commit, deliberately disregarding the victim’s refusal, whether expressed verbally or nonverbally, without the need for coercion (the “no means no” solution).
Furthermore, any person who commits or coerces another to commit a sexual act or an equivalent act involving bodily penetration against their will will now be prosecuted for rape. The definition of rape has thus been expanded, as the requirement of coercion in the basic offense is removed, the punishable acts are broadened, and the victim may be of any gender (Federal Council Message, FF 2022 1011).
Now, respect for the consent of both partners, regardless of gender, takes precedence.
In practical terms, what changes for victims of sexual violence? As a lawyer, will you be better equipped to defend victims in court and secure convictions against perpetrators?
For the court to recognize an offence and convict the perpetrator, all the objective and subjective elements must be present. With this revision, coercion is no longer required as an element of the offence, so merely disregarding the victim’s consent, without needing to physically (by immobilisation) or psychologically (by threat) coerce them, can now lead to a criminal conviction. This was previously challenging or even impossible. Now, respect for the consent of both partners, regardless of gender, takes precedence.
In my view, this revision will offer greater protection for victims of sexual offences and aligns better with today’s social norms.
Social media and increased use of phones allow the police to establish facts more precisely, even if the victim does not remember anything.
Have politicians overlooked the reality of sexual assaults, where up to 70% of victims, according to studies, are in a state of tonic immobility and thus unable to resist?
No, I don’t believe so. Cases in which the victim is incapable of resisting (e.g., due to familial ties) or of exercising discernment (e.g., due to alcohol or drugs) are covered by other provisions, particularly art. 191 of the criminal code.
Additionally, social media and increased use of phones allow the police to establish facts more precisely, even if the victim does not remember anything (thanks to geolocation, data use, and so on).
The sooner victims can speak out, the more accessible the evidence remains, reducing the perpetrator’s chances of escaping justice.
Karin Keller-Sutter, federal councillor currently responsible for justice, acknowledges that victims will continue to face challenges in proving the violence they endured. What message would you like to share with them?
It’s true that the burden of proof can be heavy for victims of sexual violence. However, as mentioned above, the resources available to law enforcement are powerful (phone and computer data extraction, cyber analysis, etc.).
I believe the most important thing for a victim is to be surrounded early on (LAVI, lawyer, friends, support groups, and family). The sooner victims can speak out, the more accessible the evidence remains, reducing the perpetrator’s chances of escaping justice. In short, if you are a victim, do not stay isolated.
