The modernization of sexual criminal law also met with approval in the legal commission of the large chamber: it wants to go even further than the Council of States.
The decision of the National Council Commission on the revision of the rape penal norm means an about-face.
The revision of the rape criminal law is currently one of the major construction sites in criminal law. The legal commission of the National Council presented its proposals on Friday, which differ in one central point from the version decided by the Council of States in the summer.
The Council of States was of the opinion that there was only rape when the perpetrator disregarded the verbally or non-verbally expressed will of his or her sexual partner. In the discussion, this variant is often referred to as the “No means no” solution.
This is too weak for the National Council Commission. It requires an unequivocal yes from the sexual partner before the sexual act. If this consent is missing, it should automatically be a case of rape. The consent does not have to be given expressly.
Bring perpetrators to the fore
It is also present if this results beyond doubt from the behavior of a person. The lawyers speak of “implicit behavior”. This variant is referred to as the consent solution – or colloquially: “Only yes means yes.”
In this way, the legislature is signaling that consensual sexual acts are always based on the consent of the people involved, according to a statement from the commission on Friday evening.
In addition, the Commission hopes that when investigating sexual offenses, the prosecution authorities will increasingly focus on the behavior of the suspected perpetrator and not on the behavior of the victim.
Violence and coercion are subject to higher penalties
On the other hand, the Council of States agree on another important point of the revision: In future, intrusion against the will should also be considered rape if violence does not occur. In future, cases in which the victim does not defend themselves will also be clearly recorded.
This should also include what is known as stealthing – a constellation in which sex is consensual, but the condom is secretly removed. The coercion element should not only be omitted in the case of rape, but also in the case of sexual acts without penetrating the other person’s body.
However, if the perpetrator uses additional violence during a sexual assault or rape, if he threatens or coerces the victim, if he puts psychological pressure on him, then the sentence will be significantly increased.
Little relevant for everyday court practice
The decision of the National Council commission means a U-turn compared to the Council of States. Human rights and women’s organizations had lobbied intensively for this variant in recent weeks. So the decision doesn’t come as a complete surprise. Whether this variant will really prevail in the end is completely open.
In everyday legal practice, however, the whole thing will probably soon be eaten less hot. From the point of view of most lawyers, it is not decisive in practice which of the two solutions is decided. In any case, the main focus in both cases is on questions of proof.
The Commission has also dealt with the penal framework in sexual criminal law. However, she rejects calls for the fines to be axed for all sexual offenses or for individual offenses to be subject to massively higher prison sentences or minimum penalties. Only in the case of rape does the majority put the cancellation of the fine up for discussion.
The decision of the Council of States to introduce a new minimum sentence of more than two years for rape with the aid of violence, coercion or threats is also not approved. She pleads for a year.