In the current summer session, the Council of States is debating the reform of Swiss sexual criminal law. The most important information about the template and who speaks out for or against it.
People from Operation Libero and politicians demonstrate on Tuesday in front of the Federal Palace in Bern for the “Only yes means yes” principle.
The Legal Commission of the Council of States wants to redesign the core provisions of sexual criminal law, namely the offenses of sexual coercion and rape. To this end, the commission presented a reform proposal in February, which the Council of States will discuss on Tuesday. After the Council of States, the bill goes to the National Council. The debate revolves around a key question: Should the consent or the objection solution reform Swiss sexual criminal law?
What exactly are the claims about? And what about the political parties? The most important questions and answers on the forthcoming reform debate in Swiss sexual criminal law.
Sexual assault is punishable as rape if the perpetrator “forces the woman to have sex, in particular by threatening her, using violence, putting her under psychological pressure or making her unable to resist”. With this so-called principle of coercion, the applicable Swiss sexual criminal law defines a rape.
Involuntary entry is said to be rape, even if violence does not occur. In future, cases in which the victim does not defend themselves will also be clearly recorded. In such a case, a prison sentence of up to five years is imminent. This should also include what is known as stealthing – a constellation in which sex is consensual, but the condom is secretly removed.
The element of coercion should not only be removed in the case of rape, but also in the case of sexual acts without penetrating the other person’s body. If the perpetrator uses additional violence during sexual assault or rape, if he threatens or coerces the victim, if he puts psychological pressure on him, then the upper limit of the sentence increases to ten years.
The members of the commission agreed that the offense of rape or sexual assault should also be given without coercion. But that’s where the unity ends. The Commission disagrees as to how the victim must express his or her will.
The majority of the Commission is of the opinion that there is only rape when the perpetrator disregards the verbally or non-verbally expressed will. In the discussion, this variant is often referred to as the “No means no” solution. This solution is included in the proposal that the Commission is submitting to the Council of States.
This is too weak for the minority. It requires a clear yes from the sexual partner before penetration. If this consent is missing, it should automatically be a case of rape. The consent does not have to be given expressly. 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.”
The majority of the debate, both in the parties and in civil society, revolves around the core issue of approval. Like the Commission, the parties are divided on the issue. “I don’t assume that the FDP will plead for ‘yes means yes’,” says the liberal Council of States Andrea Caroni. The center will not take up this concern either. And the SVP makes it clear that “No means no” is the right principle for them. The Federal Council is of the same opinion. The majority of bourgeois parties will therefore support the contradiction solution.
From the bourgeois camp, only the green liberals support the system change as a whole. It is demanded above all by the women’s organizations in association with the SP and the Greens – but only with the principle “Only yes means yes”. The principle also meets with approval within the FDP, especially among FDP women: “As a country, we can use this solution to send a signal that for us as a society, sexual contact is only okay if both say yes and not already , if someone doesn’t say no, »says Susanne Vincenz-Stauffacher, President of the FDP Women. Approval for this also comes from some representatives of the center.
From civil society, organizations such as Amnesty Switzerland or Operation Libero also advocate “only yes means yes”. And the population itself? In a representative online survey published by Amnesty International Switzerland in mid-April, almost half of the respondents were in favor of the consent solution regarding the revised sexual criminal law. Only 27 percent of all respondents were in favor of the contradiction solution. More than 24,000 people have signed a petition for “Only yes means yes”.
The minority of the Council of States Commission argues that in the case of the consent solution – i.e. the need for consent to sexual intercourse – the focus in court proceedings is less on the victim and more on the perpetrator. It is also a signal that “society does not tolerate certain behaviors”. Amnesty Switzerland writes: “Only the “Only yes means yes” solution, which is based on the consent of all people involved, can adequately protect sexual self-determination.”
Proponents of the “Only yes means yes” principle also argue with the so-called “freezing”. The body reacts to a dangerous situation with an inability to move. It is impossible for the victims to defend themselves verbally or non-verbally. The absence of an objection cannot therefore be interpreted as consent to sex, so the argument goes.
The opponents of the consent solution do not believe that the victim would be less exposed in court. It must continue to be asked why it did not defend itself. You always have to find out as precisely as possible what happened. Otherwise, an indictment or a judgment would not be possible.
Some people fear that the “only yes means yes” solution will mean that written consent must be obtained de facto before a sexual adventure in order to safely avoid subsequent conviction. However, the court still has to prove wrongdoing on the part of the perpetrator. A reversal of the burden of proof is not associated with the consent solution.
The draft for a revision of the sexual criminal law provides for further changes compared to today. In the past, only women could be victims of rape. Now the facts are formulated in a gender-neutral way.
In addition, perpetrators of sexual acts with children under the age of twelve should now face a minimum prison sentence of one year. Any person who performs sexual acts or has them performed while performing an activity in the healthcare sector shall be punished with imprisonment for up to five years or a fine. Other changes relate to the offense of pornography.