Victim rights and support

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Q&A

Interview with Cécile Greset, research associate and doctoral student at the Institute of Gender Studies in Geneva | March 2022.

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How is support for sexual violence between individuals over sixteen evolving in Switzerland?

Starting in the 1970s, feminist movements, especially in France and the United States, increasingly addressed issues surrounding sexual violence, which also influenced Switzerland. Meanwhile, criminal justice systems have made limited progress, and sexual violence is not always addressed adequately. This is partly due to the system’s inherent structure (fragmentation, individualization, and decontextualization of actions) and biases that legal practitioners may harbour—biases related to perceptions of heterosexuality, gender, class, etc., often without their awareness. Justice is not neutral; it is dispensed by individuals who operate within a specific socio-historical and political context. Movements like #MeToo have, in my view, had a far greater impact on survivors, who finally felt heard, rather than on the justice system itself.

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A legislative reform concerning Articles 189 (sexual coercion) and 190 (rape) is currently underway (the reform was approved by the Council of States on June 7, 2022 – more information in this article – and by the National Council on June 1, 2023, in the form of “no means no,” with consideration for the state of shock, editor’s note). At the heart of the debate is the notion of consent (not only coercion), with two proposed versions: against one’s will (“no means no”) or without consent (“only yes means yes”). In the first case, the victim is expected to react by expressing a refusal if they do not want sexual contact (otherwise, consent is assumed). In the second, the focus is less on the victim’s behavior and more on the accused, who must ensure that consent has been given by the other person (otherwise, sexual acts constitute an offence). The “no means no” solution appears to be prevailing in the legislative debates (it was indeed the chosen version in 2023, editor’s note).

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The requirement for coercion, as currently defined, to constitute an offence is narrowly interpreted and reflects a limited view of violence, failing to account for most survivors’ experiences. It overlooks the structural aspect of power dynamics in society, which do not allow everyone an equal opportunity to express consent or refusal, creating conditions conducive to the perpetuation of sexual violence.
 

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« La révision de la loi sur les violences sexuelles témoigne d’une volonté de mieux prendre en compte des éléments comme l’état de sidération. Une vision plus large de la contrainte s’avère nécessaire pour une meilleure compréhension de ces violences. »

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In cases where someone says no but ultimately yields, coercion might not be violent but is still present – a nuance that current legislation does not recognize. For instance, there may be no verbal threat or physical violence, but financial, administrative, emotional, hierarchical, or medical authority dependency may prevent someone from freely expressing their desire or may lead them to prioritise their physical integrity over their sexual integrity. The legal revision reflects a desire to consider factors like the state of shock, although this remains within the psychological domain. A broader (circumstantial and structural) understanding of coercion is necessary for a fuller grasp of these crimes.

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The reform also proposes that rape should encompass any forced penetration (vaginal, anal, or oral) of a woman or man, rather than solely vaginal penetration of a woman by a man.

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What can a victim of sexual violence expect from criminal proceedings?

It is crucial to understand that the criminal justice system is not designed for victims. A victim reports an offence and, through their testimony, may help to convict the perpetrator. However, from start to finish, the criminal process is centred on the accused, with their conviction, if found guilty, being in the interest of society. Criminal justice takes place between the accused and society (represented by the prosecution), not between the accused and the victim.

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A victim who pursues criminal proceedings seeking recognition may find their expectations severely unmet. One role of LAVI (Victim Support) is to provide this recognition by granting victim status (and its associated rights). Therefore, it is highly recommended that victims of violence consult a LAVI centre before starting a criminal case. While LAVI automatically believes victims, criminal justice (consistent with how it currently functions) questions the victim’s account to objectively verify it – an objectification filtered through rather restrictive criteria, raising complex issues, particularly when it is one person’s word against another’s and depending on the individuals involved.

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« La justice pénale se joue entre la personne prévenue et la société (représentée par le Ministère public), mais pas entre la personne prévenue et la victime. »

The fear of not being believed is real and can deter someone from initiating legal proceedings. Addressing sexual violence is complex and must involve more than criminal justice – it is also a societal issue. For victims, the fact that judicial truth and factual truth may not align can be challenging and frustrating. Criminal justice may convict an offender or acquit them due to reasonable doubt or lack of evidence. The latter outcome can be deeply distressing for a victim who may feel they have not received the validation they sought. It is worth noting that criminal justice often attempts to reassure victims by explaining that judicial truth may not necessarily reflect lived reality. Yet the judicial authority can be so strong that this “truth” may be seen as the truth, which is troubling, as it affects not only the parties involved but also society, shaping perceptions of what constitutes sexual assault and the guilt victims might feel.

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Restorative and transformative justice can be valuable tools for both victims and offenders, enabling both to regain ownership of their conflict and the terms of its resolution. Through mediation, if both parties agree to participate fully, the person who committed the violence is invited to reflect on what happened, potentially undergoing transformation. The victim, on the other hand, may feel acknowledged and heard in terms of their needs. This process of understanding the violence, which may require substantial groundwork, should help the offender reassess themselves and give the victim the chance to heal. However, this form of justice works best in a community context, where those involved have a shared interest in resolving the conflict to avoid exclusion. In a more individualistic society like ours, this pressure is weaker, and interest in this type of justice for sexual violence is low. It may also demand a significant investment from the victim without a guaranteed outcome.

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In my opinion, individuals are not inherently bad or malicious. Facts are not neutral, and people exist in social and political contexts that can encourage certain behaviours. Understanding what happened is vital for offenders to recognize their actions and change their behaviour. Conversely, in a purely penal process, an offender may be convicted without understanding their actions, or even feel wronged, or be acquitted and think they did nothing wrong. This leads nowhere. By striving to rehabilitate the victim and transform the offender, restorative and transformative justice aim to impact society directly, with a strong intent to “repair” what occurred, restoring relationships or connections.

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How could the justice system better support victims of sexual violence?

I believe it is crucial for all members of the judiciary to adopt a more structural perspective on sexual offences and the power dynamics that foster them. Reflecting on their practices and identifying biases, particularly regarding gender, views of heterosexuality, and perceptions of victims and offenders, could improve justice. Sociological insight enables a deeper understanding of the broader context of sexual violence and would ensure a more comprehensive approach to these offenses.​

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« Les aspects sociologiques et structurels représentent les véritables enjeux pour comprendre les infractions, notamment sexuelles, qui ne sont pas les faits d’individus isolés, mais bien plutôt de conditions sociétales favorisant la perpétuation massive de telles violences. »

Courses in criminology and victimology are available to magistrates, though attendance is optional. Yet these two fields are often psychological and are not the sole tools for understanding sexual violence, victims, and offenders. Sociology and structural factors are key to grasping these crimes, which are less about isolated individuals and more about societal structures, especially power dynamics, that allow such violence to continue. Awareness of these issues could make judicial practices fairer and improve the handling of sexual violence cases.

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One aspect of my research involves rewriting judgments. This exercise (purely theoretical) allows for a feminist perspective while respecting legal frameworks. It’s a longstanding method, though still uncommon in the French-speaking world. Recontextualizing facts may not alter the legal outcome but can shift how they are presented. This reframing can benefit victims, making them feel more heard and understood, and may also help offenders better understand their actions and feel more accountable.

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You have reviewed many cases of sexual violence during your research. What message would you like to send to victims?

Surround yourself with support (LAVI, victim support organisations, friends, trusted individuals, legal counsel), and make sure to be well-informed before considering legal action. Going to court may be meaningful for you, or perhaps healing will come from another path.

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This also applies to undocumented victims who may have much to lose by reporting violence: going through LAVI, which has an absolute duty of confidentiality, can provide guidance on possible actions and support. Should you decide to press charges, LAVI can, for example, assist you in securing temporary residency during the proceedings, although obtaining this is far from guaranteed.
 

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