Sexual offenses law: are fines enough for rapists?

When the National Council decides on the new sexual criminal law next week, it will not just be about the controversial “Yes is Yes” solution. There is also debate about the type and amount of penalties for rapists. Not only the SVP demands a consistent pace.

The National Council will discuss the revision of the sex criminal law on Monday.

Alessandro Della Valle / Keystone

After a Christmas dinner by employees of a social foundation, a member of management and an employee ended up in the woman’s apartment in the middle of the night. Out of pity, she offered him to sleep on the sofa that cold winter night, the woman said later at the court hearing.

But the drunk man kept making new advances and assaults in the woman’s apartment, against which she initially defended herself physically and verbally. Eventually, however, after the man had not let go of her, she endured the sexual intercourse without resistance.

The crime, which took place in the canton of Zurich, dates back several years and involved various court instances. The federal court finally ruled last year that it had been a case of rape after the lower court acquitted the man.

The judgment is remarkable because it points in exactly the direction that Parliament is aiming for with the revision of the sex crimes law: Even if the victim does not defend himself against the intrusion, the act is to be punished as rape in the future. This is the central element in the forthcoming revision of the law – which the Federal Supreme Court has already anticipated with this and similar decisions.

sale of indulgences with money

The case is also interesting for a second reason: the accused was only sentenced to a conditional prison sentence, despite the serious offense for which imprisonment is threatened for up to ten years. For Lukas Loos, this case is a good example of the fact that the courts often tended to be too lenient when it comes to sexual offenses.

Loos chairs a committee that advocates tougher penalties for sex offenses and puts pressure on parliament in the run-up to the debate. The committee includes many SVP and EDU politicians, but also representatives of mainstream parties.

Loos fears that with the forthcoming revision of sexual criminal law, the courts could soon impose even milder sentences and in many cases dispense with imprisonment altogether. The National Council will decide on Monday whether the courts can even impose fines for rapes in the future. Today this is not the case.

Such a step would be a mockery, says Loos: “They deprive the victims of their right to appropriate retribution for the injustice suffered.” In pithy words, the committee criticizes that such a solution is nothing more than a “monetary indulgence sale”.

Fines have already been rolled back

The majority of the legal commission, which prepared the business for the debate on the new sexual criminal law on Monday, sees it similarly: They only want to allow fines in the case of sexual coercion – i.e. sexual offenses without coitus and acts similar to cohabitation – but not in the case of rape. Fines are intended for mild cases, explains Judith Bellaiche from the GLP, which sits on the legal commission.

It is uncertain whether the majority will get away with it: a minority insists on the possibility of fines even for rapes. The Council of States, with the approval of the Federal Council, has already decided in this way. There is no scientific evidence that imprisonment has a greater deterrent effect, explains the Green Sibel Arslan (Basel-Stadt). Especially in the case of first-time offenders with little fault who also showed remorse, the courts should have the option of refraining from imprisonment.

The argument about the meaning and effectiveness of fines is as old as fines themselves: they were only introduced in 2007 in response to the massive increase in short prison sentences and the associated consequences: short prison sentences often lead to offenders being torn from their environment and possibly lose their job and home. In most cases, such punishments do not have a resocializing effect – quite the opposite in many cases. Shortly after the fine was introduced, however, the pendulum swung back in the other direction. Short prison sentences are now possible again, and the fine has been reduced.

The fact that the fine should now also be possible in the case of rape has to do with the revision of the sexual criminal law: the offense of rape is extended to actions that were previously not covered by it. This tightening is compensated for by giving judges more leeway in sentencing. This scope corresponds to that for other criminal offences.

Most rapists are “unconditionally” convicted

Arslan emphasizes that the courts can continue to impose short prison sentences in the future – and that fines for rapes should remain the exception in her opinion. But there is no reason to limit the scope for action here. The Council of States was of the same opinion in the summer, without this being discussed much. The majority of the National Council Commission, on the other hand, is of the opinion that sexual assault and rape are acts for which fines are never appropriate. Rape is never easy. It is always a serious crime, explains Bellaiche.

The Council of States and the Legal Commission of the National Council intend to make another correction: the minimum sentence for qualified rapes (using violence or psychological pressure) is to be increased to two years. This means that the courts could no longer impose conditional sentences in these cases. This is particularly noteworthy in view of the harmonization of the range of penalties just passed by Parliament: according to this, conditional penalties are theoretically possible even for life-threatening bodily harm.

The conviction statistics show that in more than two-thirds of all rape cases, unconditional or partially conditional prison sentences are pronounced. Almost 90 percent of all those convicted with an unconditional prison sentence have to go to prison for more than three years, according to the figures from 2021. For more than half of them, the sentence is even more than four years. And when it comes to conditional prison sentences, the courts also go to the upper limit in most cases. It was the same in the case of the rape after Christmas dinner at the social foundation: the court fixed the sentence at two years. So the perpetrator missed an unconditional punishment by a hair’s breadth.

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