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Is sex without explicit consent a rape? According to the Federal Supreme Court, politicians must clarify this.
Investigating sex crimes is always difficult. What is clear in the present case, which the Federal Supreme Court had to judge: A man and a woman met in a Geneva bar, drank, danced and kissed. Eventually the two went to his house and had sex.
It is disputed whether the woman really agreed to the sexual intercourse. She then claimed that she had been raped. In the first instance, the man had actually been convicted of rape. But then he was acquitted by the Geneva cantonal court, just like now by the federal court.
“In doubt for the accused”
This sees no evidence of rape. There are sometimes contradictory statements by the two parties involved, and the principle applies: in case of doubt for the accused. It is legally interesting that the woman demanded a conviction with reference to the principle “Only yes means yes”, i.e. that express consent was required before sexual intercourse. She argued that this was required by the Council of Europe Convention against Violence against Women, the so-called Istanbul Conventionwhich Switzerland has also ratified.
Legend:
“Only yes means yes”. In the case of sex, this rule means something like: “Only if everyone involved agrees to it, it is definitely not rape.” The supporters of this rule require such an explicit declaration of consent. In order for it to apply, sex criminal law needs to be tightened – so politicians have to decide.
key stone
Here the federal court disagrees. The provision in the Istanbul Convention is formulated relatively openly. The individual states are free to implement this specifically in legislation. And according to current Swiss criminal law, there is rape when a perpetrator knows or accepts that the victim does not want a sexual act and ignores this, for example by exerting psychological pressure or threatening. A conviction is possible even if the person does not use physical violence.
Various women’s organizations and left-wing parties are calling for the applicable sexual criminal law to be tightened and that those involved must always explicitly say yes to sexual intercourse. The Legal Commission of the Council of States goes too far. She advocates an extended “No means no” rule. Parliament will soon deal with the controversial issue.