Was it consensual sex or rape?

Once again, a case before the Zurich District Court deals with the question: Were sexual acts between a man and a woman consensual? The man says yes, the woman says no.

A 25-year-old Italian dancer who lives abroad is said to have committed the offense of desecration after an evening out in Zurich with sexual acts on a drunk, allegedly unable to resist colleague in her apartment. The woman only filed a criminal complaint six months later. The prosecutor demands 4 years imprisonment and 10 years expulsion from the country.

The accused was out and about with three colleagues one night in September 2020. The women had bought a bottle of gin. One of the friends is said to have gotten so drunk that she could no longer stand on her own. The others brought her home, according to the indictment she had to be heavily supported and she had to be helped up the stairs to her apartment. There she threw herself directly onto the bed. The suspect stayed. The two colleagues went home.

According to the indictment, the accused then stripped the woman naked and penetrated her without a condom. The woman could hardly keep her eyes open and could defend herself neither verbally nor physically. Due to her heavily intoxicated state, she was unable to speak or move. However, she noticed that the accused was not using a condom and brought out the word “condom”. The man replied that he didn’t have one and carried on.

Did the woman take the initiative?

In court, the accused admitted that the woman was drunk. But she asked him to stay, so the colleagues left. She then got up and locked the door from the inside. She undressed herself because she was hot. Then she hit him and tried to kiss him three times. First he fought it off, the third time he gave in. There had been consensual sexual acts. The woman spoke and actively participated.

She noticed that he wasn’t using a condom and stopped. “I told her that I don’t use something like that,” the accused explained in court. The woman then showed him with a hand movement that he should continue. When asked why he does not use a condom, the reason in the courtroom is not entirely clear. It seems to be a matter of principle. He has his health tested and he “does not go to bed with the first person who comes along,” says the accused when asked whether he is not afraid of illness or an unwanted pregnancy.

In addition to those directly involved, there is another colleague who is an important witness. She incriminated the accused in the investigation and described her friend’s drunkenness much harder than he did. After the night, the accused was also very nervous and told the witness that he was afraid that the young woman might think he had abused her and that she might report him for something he hadn’t done. He said to the witness: “I knew she was drunk, but meat is meat and I’m just a man.”

The accused confirmed this statement in court without hesitation. He also admits that he later told the private prosecutor that, in his view, the intercourse should not have happened because she was too drunk. And he also apologized to her. However, he explains that the initiative came from her. He didn’t want the young woman as a friend, only as a colleague, and she got angry because he didn’t want a relationship.

Whatsapp chats as evidence

The prosecutor considers the facts to be legally sufficient. Once again, Whatsapp chats between those involved play a role: the victim wrote to the man several times after the crime that she assumed abuse, and he apologized to her. The perpetrator had exposed the woman to the risk of pregnancy and illness, but did not plan the act, but instead took advantage of “a moment’s blessing”. The lawyer for the private prosecutor is applying for compensation of 15,000 francs for the young woman who had to seek psychological help.

The defense attorney wants a full acquittal. Sex crimes are heinous and should be condemned, but this should not lead to the condemnation of innocent people. The word “condom” is not a “no” and can also be understood as consent to sex. He presents the case as an act of revenge because the accused did not want a relationship with the victim. He also quotes from Whatsapp messages.

At 8 a.m. on the morning of the incident, the victim wrote to the suspect, who had already left the apartment, that he had run away. “You could have stayed a little longer.” She also wrote him that she was in bed and that he could come by again. This news in the morning would also indicate that the woman could not have been so drunk during the night. In the following weeks, the couple also met for dinner and talks before the woman filed a criminal complaint.

Court cannot answer main question

The Zurich District Court acquitted the accused of all allegations according to the principle “in dubio pro reo”, in case of doubt for the accused. He received compensation of 3,800 francs for 19 days of unjust imprisonment. According to the presiding judge, the most important question, whether the victim was unable to resist during sexual intercourse, cannot be answered by the court. The information provided by the parties involved and the main witness is inconsistent.

In the context of the chat messages the next morning, however, there were no indications from the injured party that they did not want what had happened. Rather, she expressed her disappointment that the man had already left and asked if he would like to come back. While the judge announced the acquittal, the accused burst into tears of relief.

The judge, however, throws a little lecture against the accused: Despite the acquittal, the court believes the young woman does not want to harm the accused and is really suffering from what happened. The Chair hoped the accused would learn from this case that such behavior could cause suffering. It is also hoped that he will reconsider his attitude towards contraception in the future. It is generally known that such behavior is grossly negligent.

Judgment DG220053 of July 11, 2022, not yet final.