Sexual violence against women is an omnipresent topic, but in reality much is unclear. For example, it is not known why more men accused of rape are convicted of rape in western Switzerland than in German-speaking Switzerland.
The SP national councilor Tamara Funiciello considers the conviction rate for rapes to be outrageously low.
It is a huge number with which the SP national councilor Tamara Funiciello is fueling the debate about the “Only yes means yes” solution in sexual criminal law. “430,000 women have already been raped in Switzerland,” she claims. “Only 1.8 percent of the perpetrators were convicted.” That is outrageous and needs to change. Funiciello and her colleagues base this on a survey by Amnesty International Switzerland from 2019, according to which twelve percent of all women over the age of sixteen have experienced sexual intercourse against their will. Extrapolated to the female adult population of Switzerland, that results in 430,000 women.
More accused, fewer convicted
Numbers like that make an impression. However, nobody knows how high the number of unreported cases of rape actually is and whether the police crime statistics represent only the tip of the iceberg, as the activists say. What is known is that last year 757 cases of rape were reported to the police across Switzerland and there were 77 convictions of adults – although these are not the same cases, as there can be quite a time between reporting to the police and the court verdict. Apart from that, much is unclear and puzzling.
A particularly big puzzle is the conviction rate, also for the Federal Councilor responsible. “Why is it that there are more convictions in certain cantons than in other cantons?” Karin Keller-Sutter asked in the summer session of the Council of States. The Minister of Justice referred to a study published in 2021 by Dirk Baier, head of the Institute for Delinquency and Crime Prevention at the Zurich University of Applied Sciences (ZHAW).
Baier investigated how violent crimes – and thus also rapes – developed in Switzerland from 2010 to 2018. The number of alleged rapes reported to the police is increasing. From 2016 to 2018, 7.3 cases per 100,000 inhabitants were registered annually. From 2010 to 2012 it was 7 percent, from 2013 to 2015 6.8 percent.
Baier also examined how high the conviction rate is, i.e. how many accused men are convicted in the end. The opposite trend can be seen here: there are more reports of rapes, there are more suspects, but the number of convictions is falling. In the period from 2016 to 2018, 22.8 percent of the accused men, i.e. slightly more than one in five, were found guilty. This value is lower than in previous years, when it was a good one in four.
It is not known why the conviction rate falls when the number of suspects increases. It is conceivable that as a result of the #MeToo debate more sexual experiences are reported to the police, which may have been unpleasant, but which do not exceed the threshold of criminal liability. It cannot be ruled out that false accusations will be made more often than before, which will lead to the dismissal of the proceedings or to an acquittal. It is undisputed that providing evidence in four-eyes offenses poses great difficulties. So it’s not surprising that the conviction rate for rape is by far the lowest among violent crimes.
Vaud condemns two out of three
What is surprising, however, is how much the conviction rate varies between cantons. The canton of Vaud is the leader: Between 2016 and 2018, 61 percent of the accused men were convicted there. The value is also high in Freiburg and Valais. At the other end of the scale is Zurich, where it was 7 percent according to the ZHAW study. In general, fewer accused men are convicted in the German-speaking Swiss cantons than in western Switzerland. The author of the study, Dirk Baier, does not know the reasons for these differences. To find out more, one would have to read the files and examine whether similar cases are actually judged differently depending on the canton.
In the Canton of Zurich, the ZHAW study is not fun and they feel that they are being misrepresented. The numbers should be treated with great caution, says Lukas Huber from the Zurich High Court, pointing out that in 2020 there were 17 acquittals and 9 convictions for rape in the Zurich district courts. In addition, it could be that a defendant is acquitted of the charge of rape, but convicted of sexual assault. This is not reflected in the numbers of the study.
Even defenders and victims’ lawyers who have been consulted cannot make sense of why the conviction rates differ so much. One assumption is that the cantons follow different prosecution practices and interpret the principle that the public prosecutor’s office must bring a case before the court in different ways. If a prosecutor’s office charges only those cases in which a conviction is likely on the basis of the evidence, there are fewer acquittals.
If, on the other hand, the rule applies to pass the ball to the court whenever possible and to accuse reported rapes even when the evidence is scant, more acquittals can be expected. Perhaps it is also the police who act differently and advise women in one canton against pursuing the matter if the facts are unclear and not in the other.
Penalty Italians
The thought is obvious that perhaps cultural differences also play a role and contribute to accused men in French-speaking Switzerland being treated more harshly. In the aftermath of the ZHAW study, it was said that women in Vaud tended to be more believed than those in Zurich. However, that is a steep claim and would ultimately mean that the criminal justice system applies different standards depending on the part of the country – and acts unfairly either towards women or towards men.
What can be said, however, is that there are generally more penalties in French-speaking Switzerland. The French-speaking Swiss tend to have a more repressive understanding of criminal law than the German-speaking Swiss, the punitiveness is higher, as shown by the Swiss verdict statistics, says prisons expert Benjamin Brägger, who knows the judiciary in both parts of the country. In French-speaking Switzerland, more people would be arrested and given longer sentences than in German-speaking Switzerland. However, it is not yet possible to say whether a man who has been reported for rape will also be found guilty sooner.
So there are some dark areas to shine a light on and questions to clarify. Justice Minister Keller-Sutter announced in the Council of States that she would take matters into her own hands and take stock of the situation in the cantons.
Survey of peers
However, the above-mentioned survey by Amnesty International Switzerland, which is used to put pressure on the ongoing consultations on sexual offenses law, also raises questions. The survey, which was carried out by GfS Bern and received wide media coverage, is based on the information provided by around 4,500 women; No men were interviewed, although one or the other could certainly have contributed personal experiences with sexual assault.
100 women were randomly selected and interviewed by telephone, 385 more were personally invited for an online survey. More than 4,000 women, on the other hand, took part on their own initiative and took part in an open online survey that Amnesty International Switzerland had advertised on its own channels. The last group reported significantly more negative experiences than the first, randomly selected group of women. A good number of the participants were, so to speak, recruited by Amnesty International Switzerland itself and motivated to take part. Against this background, one can ask how representative the survey results actually are and to what extent they correspond to reality.