Close decision for “No means no” in the Council of States

The Swiss sex criminal law is to be tightened: Anyone who ignores the will of the other person is liable to prosecution. The Council of States rejected the more extensive “Only yes means yes” rule, but only just. It was said that she considered sexuality to be fundamentally undesirable.

The “Only yes means yes” demand became a feminist commitment.

Peter Klaunzer / Keystone

Amnesty International knows how to campaign. In 2019, the organization in Switzerland launched its campaign for a “contemporary sexual criminal law”. The Swiss penal code is incomplete and based on outdated stereotypes, it said. Every sexual act without consent must be punishable, only the “Only yes means yes” rule protects the woman’s self-determination. A large number of non-governmental organizations and several criminal law professors joined Amnesty International’s call for activists to call for demonstrations. The “Only yes means yes” demand became a feminist commitment.

waiver of coercion

On Tuesday, the Council of States, as the first council, dealt with the change in sexual criminal law. The initial situation was not easy, as the public discussion beforehand had developed a considerable emotional explosive force and had largely distanced itself from the legal aspects. This was exemplified by a media release that the women of the Mitte party sent out a few days ago: the Mitte politicians warned that one should not focus too much on the legal evidence. It’s about sending out the “right message”.

The Council of States was not influenced by such appeals. “We are in criminal law and not in social policy,” said the Valais middle Council of States Beat Rieder. The Council of States agreed that the offenses of rape and sexual assault should be amended. Current law requires the man to force the woman to have sex or to engage in another sexual act in order to be punishable. Although the Federal Supreme Court sets the hurdles low, it does not allow any pressure to apply. For example, if a woman’s husband threatens to go on vacation alone if she refuses sex, this is not considered coercion today; the sexual intercourse obtained as a result is therefore also not a punishable offence.

That should change, coercion should no longer be necessary for criminal liability, the victim’s no is enough. This is a milestone, emphasized several speakers in the Council of States. In short, this means that anyone who does something sexual against the will of the other person is liable to prosecution. The victim can express his rejection verbally or non-verbally, for example by turning away from the perpetrator or shaking his head. It doesn’t have to do more: it doesn’t have to defend itself, it doesn’t have to move away either, even if this were possible without any problems – the rule is “No means no”. Surprising sexual assaults are also to be recorded, for example when the perpetrator suddenly grabs the victim’s swimming trunks in the swimming pool. Today, such assaults are punished as sexual harassment, which is considered unfair depending on the intensity of the act.

Rape like trespassing

For the advocates of the “Only yes means yes” rule, these tightening are insufficient. These would leave a criminal liability gap open and would not cover those constellations in which the victim was petrified, said Green Geneva Councilor Lisa Mazzone. If the woman does not react, it is the man’s duty to ensure her consent. Having sex without consent is like breaking into someone’s home, Mazzone said. Society expects this reform, emphasized other members of the Council of States.

The opponents objected that living out sexuality is now understood as something positive; the “No means no” rule is more realistic in this respect. The consent solution, on the other hand, sees sexual acts as fundamentally undesirable, which ultimately leads to the criminalization of sexuality. The lawyers in the Council of States warned that the “Yes means yes” rule actually reverses the burden of proof, since the perpetrator has to prove his consent in court. The judiciary would be overwhelmed.

In the end, the council voted 25 to 18 in favor of the “no means no” rule. In addition to the left camp, some liberals and center politicians also spoke out in favor of the consent solution. The council also refused to regulate sexual assaults during so-called “freezing” when the victim cannot move as a separate criminal offence. The fact that rapists do not always have to be sentenced to imprisonment was also discussed. This means that “many sex offenders would remain free men,” criticized Werner Salzmann, the Bernese SVP Councilor of States.

Don’t raise expectations too high

Justice Minister Karin Keller-Sutter supported the “No means No” solution; it is more practical and transparent. At the same time, she pointed out that one should not arouse too high expectations, as the typical difficulties in proving four-eyes offenses remained. More than criminal law reform is needed. In the Council of States, Keller-Sutter promised a project on the subject of sexual violence that would investigate how victims were accompanied and clarify why certain cantons had more convictions than others.

The revision of the sexual criminal law includes a number of other points that still have to be discussed. The bill will then go to the National Council. It is conceivable that he will be more willing to support the “Only yes means yes” rule. The left-wing parties are united behind the consent solution, and with the help of parliamentarians from the political center, a majority could be achieved in the National Council.

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