What are the benefits of the new criminal law on sexual offenses?

Sexual criminal law is tightened. What does this improve for victims? And what difficulties remain? Victim and child advocate Béatrice Müller puts things in order.

What was the trigger for the revision of sexual criminal law that the National Council and Council of States passed in the summer session?

Béatrice Müller: The criticism centered on the fact that in the old criminal law only women could be victims of rape and an act of coercion was necessary. A perpetrator had to threaten a woman, use violence, put her under psychological pressure or make her unable to resist. If this act was not present, the offense was not fulfilled and the perpetrators could ultimately only be convicted of sexual harassment. The Istanbul Convention, which came into force in 2018, forced Switzerland’s hand. This is because the Convention on preventing and combating violence against women and domestic violence obliges the contracting parties to punish any sexual act that takes place without mutual consent as rape.

Nora Scheidegger’s dissertation also played a key role in the discussion. In it, the lawyer points out shortcomings in Swiss sexual criminal law. For example, there is no catch-all and basic offense that adequately covers simple acts without the (de facto) consent of the victim. This means that non-consensual sexual contact can only be qualified as a serious wrong (and therefore as rape) if there are additional circumstances beyond the lack of consent.

What role did social pressure play?

2019 saw movement in the public debate. Various NGOs were actively involved, including Amnesty International Switzerland, the umbrella organization Sexual Health, Alliance f and Women Lawyers Switzerland, as well as affected professional groups from the judiciary and victim counselling and politicians. Two petitions, each with almost 50,000 signatures, were submitted, lending more weight to the demand for a revision. Now the Federal Council and Parliament have also recognized the need for reform and have set to work. In addition, the debate has taken place in broad social circles, which has slowly led to a rethink and continues to do so.

In your opinion, what are the main changes to sexual criminal law and what exactly are they about?

The major and significant change concerns the new “no means no” rule. This means that anyone who performs a sexual act against the will of the victim is also considered to have committed rape. A freezing supplement has also been added. This means that a rejection also exists if a victim is in a state of shock and cannot express their rejection. Another important innovation is the new offense of sexual assault. This fills the gap between sexual harassment and rape. In addition, the inclusion of an offense of revenge pornography is an important step towards better reflecting the changes in everyday social life in criminal law. This refers to images and videos with sexual content that are passed on or published without consent.

To what extent will the protection of victims be strengthened by these changes?

In my opinion, the new criminal law on sexual offenses does not bring any clear improvement in victim protection. The Criminal Code is also not designed as a protective law. Rather, legal interests are protected, in this case sexual self-determination. The fact that a “no” is now sufficient is an important step. The inclusion of freezing is also a relief for victims in proceedings. However, proceedings still stand and fall with the victim’s statements. It must therefore continue to bear the burden of the criminal proceedings and thus the interrogation, which is also right under the rule of law.

What other effects does the revision have?

What is – hopefully – changing is society’s perception and approach to sexuality. The new criminal law on sexual offences provides significantly better protection for sexual self-determination. In future, the victim’s refusal will be sufficient. The new criminal law on sexual offenses makes it clear that sex is not simply an available commodity that cannot be had unless there is resistance. The revision of the Code of Criminal Procedure, which will also come into force on January 1, 2024, will bring improvements for victims in criminal proceedings in the areas of free legal aid, information rights and protective measures for children.

How does this affect your work?

That is difficult to predict. I do not assume that there will now be significantly more reports. As already mentioned, the procedure is still difficult for the victims. I expect that we will all have to do a lot of educational work, especially in the early days. We must point out that the victims’ statements are still of central importance in criminal proceedings.

What difficulties could there be with implementation from 2024?

Difficulties in implementation are hardly to be expected. The criminal investigation authorities must adapt their questioning to the new facts. They must now show that the perpetrators were able to recognize the victim’s “no” or at least should have recognized it. The criminal investigation must also show that the perpetrators recognized the freezing condition and consciously or at least possibly intentionally exploited it.

Cybergrooming has not been criminalized in the area of children and young people. OHbB very much regrets this. What do you think?

I regret that too. I cannot understand why the Legal Affairs Committee of the Council of States is afraid of extending criminal liability. In my opinion, this is a missed opportunity.

Where do you see a need for further revisions?

The audit has taken good account of the company’s transformation. I would still prefer the “only yes means yes” solution. However, this is due to socio-political considerations and not from a criminal law perspective. In future, it must become a matter of course to obtain consent before sexual acts. I am convinced that the move away from the act of coercion and towards a lack of consent, in addition to the new offense of sexual assault, is a good instrument. Ultimately, criminal law cannot and should not solve social problems. It is now up to society to change values, question behavior and break down old patterns and expectations.

Further information:

Nora Scheidegger: Sexual Criminal Law in Switzerland, Fundamentals and Need for Reform. Stämpfli publishing house 2018.

First yes, then ahh: Amnesty International’s campaign against sexual violence

https://www.amnesty.ch/de/themen/frauenrechte/

Overview of Amnesty International’s commitment to a revision of sexual criminal law

https://www.amnesty.ch/de/kontakt/medien/