After this Aargau influencer Morena Diaz spoke openly about her rape experience, dozens of women break their silence. According to current Amnesty International figures, every tenth woman in Switzerland has had sex against her will. However, most cases of rape are still not reported in Switzerland.
This is partly due to the case law. According to the Criminal Code, rape occurs only when a person of female sex is coerced into sex by threatening them, using violence, putting them under psychological pressure or rendering them incapable of resisting. A no alone is not enough, the victim must actively defend himself. From a research perspective, the idea that everyone is fighting back is outdated. Because many people enter the so-called «freeze» mode in an overwhelming and threatening situation – the body freezes, they are unable to act.
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Tomorrow, the legal commission of the Council of States will discuss the chunk “Harmonization of the punitive framework”. A moderate revision of the criminal law on sex is part of it. According to the Federal Council’s proposal, rape can also be claimed for anal or oral penetration. In addition, the minimum sentence for a conviction should be increased from one to two years. However, the Federal Council wants to hold onto the force.
Veto or consent solution
Women’s organizations, politicians and professors of criminal law, however, call for a revision of the definition. In the future, it is to be punished who carries out the bedding or a bedtime-like act on another person against the will of another person – regardless of whether by violence or not.
This new direction would also coincide with the Istanbul Convention, which has been in force since 2018. And what Switzerland is currently against. The countries involved undertake to punish non-consensual sexual acts.
The two legal professors Nora Scheidegger and Anna Coninx, for their part, intervened in the debate with two proposals: with the so-called veto solution, that sex is therefore mutually acceptable as long as no explicit no is expressed, or the consent solution, according to which sex is mutually agreed if an explicit yes is given.
But the question of consensus is controversial. Also in the legal commission. On the one hand, sex issues are intimate in nature, and some run counter to regulating these private matters by the state. There are also many lawyers on the committee who are reluctant to fundamentally revolutionize the system that is now in force. Too much work, retraining staff and the police, “there is resistance,” says SP National Councilor Laurence Fehlmann Rielle, who had submitted a motion to define rape. The 13-member commission also has ten middle-aged men who, at least from a victim’s perspective, are probably not as sensitive to the subject of sexual assault as women, as various parliamentarians say on request. For them, the revision of the criminal law on sex is a paradigm shift.
Switzerland is at the bottom of the European list when it comes to sexual punishment – rape within a marriage, for example, has only been punishable since 1992. Opponents of the reform fear arbitrariness as soon as the question of consensus decides. In the event of a revision, criminal law principles would be upset, Daniel Jositsch recently told the NZZ.
Intermediate stage “sexual assault” a solution?
Some see a solution in the introduction of a new criminal offense. Andrea Caroni (FDP / AI), for example, a member of the legal commission, plans to introduce a three-stage model to the commission at the end of the week. In addition to sexual harassment and rape, an intermediate stage of sexual assault is to be introduced. “This would punish serious sexual acts against the will of the victim even if there is no compulsion,” says Councilor of States Caroni. His green councilor Lisa Mazzone (GE) says you have to deal with a revision and find the right wording. However, the process must be well thought out so that victims can be properly protected.
No matter how far Parliament will go: if abuse were recognized without violence, that would be a start, Cyrielle Huguenot of Amnesty International is convinced. “In surveys, it makes a big difference whether the victim is asked, why she didn’t scream louder, or whether it was about how mutual consent was communicated and understood.”
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