If sex images are posted on the Internet without consent, in many cases there is no effective criminal law. A Council of States commission tries to take countermeasures – and ends up on shaky ground.
The Federal Council sees the problem of revenge pornography as a manifestation of cyberbullying.
Frustrated with the breakup, the man didn’t give up. He harassed his former girlfriend, damaged her car, threatened and followed her. The case ends up before a district court in the canton of Aargau, where another serious accusation came up: the abandoned man is said to have posted pornographic pictures of his ex on the Internet in order to humiliate them and take revenge. The accused was convicted of his stalking actions. But the court had to lay down its arms on one point: It had to leave open whether it was criminally relevant at all if pornographic images were posted on the Internet without consent. That was seven years ago.
The case caused misunderstanding at the time. This is also because various countries have created new legal provisions to criminalize the distribution of so-called revenge porn. In Switzerland, it is the legal commission of the Council of States that now wants to go down this path: Public prosecutors, courts and defense lawyers are being confronted with such cases more and more, she argues.
Especially common in young people
Thanks to the rapid increase in the importance of social media and messenger services, the phenomenon has “reached a new dimension,” the commission recently wrote in a report on the new sexual criminal law. This is quite common after a relationship has broken down, especially in young adults. However, with today’s means, it is not possible to react adequately to this problem. The Federal Council also recognizes that such exposures are problematic and could affect young people.
The majority of the Council of States Commission is therefore proposing a new offense “which should make the unauthorized forwarding of non-public sexual content” a punishable offence. In the worst case, the publication of private pictures with a sexual connection can be punished with up to three years in prison. And even forwarding it to a single person would be threatened with imprisonment for up to a year. The protection of the person depicted required this, said the majority of the commission. The Council of States is expected to decide on the change in the summer session. Only a majority remains skeptical and rejects the proposal.
But now the Federal Council is also warning against hasty and useless legislation: The solution proposed by the majority of the Commission is “not suitable for solving this problem,” he explained in a statement on Wednesday. On the one hand, the provision is too narrow, because not only sexual content is a problem, but compromising recordings in general. On the other hand, the wording is unclear, for example when it comes to what “sexual content” is at all. This is how uncertainties arise with a picture that shows a woman with an oversized, emphasized section. However, a provision with such unclear content is usually only rarely applied and the targeted criminal prosecution is therefore not enforced.
A case of cyberbullying
Instead, the Federal Council sees the problem of revenge pornography as a form of cyberbullying, i.e. the systematic exposure of a person using digital means. Politicians have already become active in this area. In the summer, the Federal Council wants to present a report that should form the basis for a cyberbullying offence. He is asking the Council of States to refrain from making a provision against revenge porn for the time being.
Like the Council of States, the Federal Council wants to tighten sexual criminal law in the area of sexual coercion and rape. In future, intrusion against a person’s will is also to be considered rape if the victim does not defend himself. According to this, rape would be present if 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. The Federal Council, like the majority of the Council of States, rejects the “Only yes means yes” solution, which requires consent to sex. But a heated debate is emerging here: a minority wants to help this variant achieve a breakthrough in the summer, despite all the resistance.