Revision of Swiss criminal law on rape: an opportunity that cannot be missed

By Manon Déglise & Elisa de la Lama Eggerstedt

Published in French on 24 Feb, 2020.

Today in Switzerland, a rape survivor has only one face: that of a woman covered with bruises. At least, this is what the current legal framework suggests. According to article 190 of the Criminal Code (CC), rape is defined as forced vaginal penetration by a man using means of coercion (violence or threat). Any other sexual violence would fall under article 189 of the CC, entitled “indecent assault” or under article 198 of the CC (“sexual harassment”). Hence, in Switzerland the absence of consent is not a sufficient criterion to qualify undesired sexual intercourse as rape. Indeed, the case of a female person who does not consent but where coercion is not proven; the case of a male person; as well as victims of other forms of undesired sexual penetrations are not considered as victims of rape. 

According to the Swiss Federal Statistical Office, there were 679 victims of rape in 2019. Victims of indecent assault amounted to 626. This means that during that year, 1305 persons suffered sexual violence and reported incidents to the police. Those 1305 victims have been categorized under two different groups, according to the level of seriousness assigned to their assaults. The first 679 victims were categorized under “serious violence”, and the 626 others had to settle for “minor violence”¹. For example, a man who suffers rape has to accept that his assault is only considered as a “minor violence”. Although the jurisprudence has established that any type of undesired penetration deserves a similar sentence as rape², it is clear that this distinction matters in terms of recognition of victims and their traumas. 

The typification of rape is thus problematic in Switzerland, especially since it violates Swiss international legal commitments. Indeed, Switzerland has ratified the Istanbul Convention, which came into force in April 2018. It is worth mentioning that the goal of this Convention is to fight violence against women as well as domestic violence. Article 36 of the Convention is pretty clear: Parties shall take the necessary legislative measures to ensure that rape is criminalized as a non-consensual act of a sexual nature. Hence, the definition of rape is exclusively consent-based, and does not include the use or threat of violence³. The notion of consent is largely missing in the Swiss legal texts. 

In the context of the #MeToo movement around the world, and as the scale and seriousness of sexual assaults are increasingly present in public debate, Swiss civil society has rallied itself. Usually unwilling to protest, Swiss people took the streets and dressed in purple on the 14^th of June 2019. The Women* Strike was unprecedented. More than 500,000 Swiss people were demanding change: equal pay; recognition of domestic work; fight against sexual violence; and compliance with the Istanbul Convention, among others. 

Amnesty International Switzerland has waged this fight for a long time. Cyrielle Huguenot – Women’s rights coordinator– recounts it for us. It began in 2004 with the campaign stop violence against women, focusing mostly on domestic violence. It was followed by the campaign my body, my rights in 2014 and 2015. In 2019, the human rights organization launched a campaign focused on sexual violence in Switzerland. Gfs.bern, a Swiss polling organization commissioned by Amnesty, published an investigation revealing the magnitude of the phenomenon of sexual violence in Switzerland. The results sent a shock wave: 22 per cent of women have suffered non-consensual sexual acts from the age of 16, which represents one in five women. 12 per cent have suffered non-consensual sexual intercourse. 7 per cent have suffered non-consensual sexual intercourse through the use of force. However, only 50 per cent of women broke their silence on this matter and only 8 per cent reported it to the police⁴. There are many reasons that explain these numbers – among them, the feeling of having no chance to obtain justice is the most cited. Thus, the penal definition is undoubtedly particularly responsible.

While most political leaders would be in favor of recognizing men as potential rape victims under the law, including lack of consent as the central element in the definition of rape seems far from certain. It must be said that Switzerland, due to its political system, has little tendency towards change. Conservative parties have a hard time accepting these kind of progressive demands. Given this situation, Amnesty International Switzerland undertook a national campaign focused on consent in order to change mentalities, and also to revise criminal law on sexual matters.  During the summer of 2019, billboards in every city of Switzerland carried the slogan “first yes, then oh yeees“, supported by images, making the message quite explicit: sexual intercourse must be mutually and clearly consensual. The campaign made a wide impact and the media amplified the message. The efforts of the human rights organization and Swiss civil society were fruitful: the notion of consent has taken its place in the public debate and the political agenda.

Today, the conservative trend in Switzerland has been revealed once again. On Monday February 1st, a draft revision of the criminal law submitted to consultation by the Council of States’ legal commission was published. According to this draft revision, the definition of rape is still based on coercion and not on the absence of consent. It creates a new offence, “sexual violation”, which would be based on consent under art. 187 CC. This provides for a maximum sentence of three years’ imprisonment. Art. 190 CC. defining rape would continue to provide for a maximum sentence of ten years. In other words, non-consensual penetration could lead to a maximum sentence of three years, while the same act with the use of threats or violence could be punishable by an additional seven years. 

The Commission has stated that it chose to not reform the crime of rape towards a consent-based definition because it would make it more complicated for the justice system to establish the evidence, and could lead to a violation of the principle of presumption of innocence⁵. In response, Amnesty International Switzerland replied that the presumption of innocence is not in any way questioned, and that it will always be up to the public prosecutor to prove the guilt of the accused. Furthermore, the Commission considered that it would be premature to have a consent-based definition of rape as countries that have taken this step would not have enough hindsight⁶. However, 12 European countries have now a consent-based definition of rape. Some of them have done so for more than 30 years, proof that legal procedures are not insurmountable⁷. Without being a pioneer in any way, Switzerland has the opportunity to follow a progressive movement. 

Swiss civil society criticizes the project submitted to consultation, which they consider disappointing. It is clear that the current proposal remains rooted in rape culture. In particular, it does not take into account the psychological and physical reactions that a victim can endure during an assault such as panic, shock or paralysis. How can one explain to a victim that – because he/she did not defend himself/herself physically – the assault suffered is not recognized as rape and punished much less severely? Moreover, as Cyrielle Huguenot points out, the vast majority of assaults are carried out without physical violence, in the private sphere, by people known by the victim.

This fight is part of a broader context of gender equality in Switzerland. A struggle that has never been easy on Swiss territory. We should remember that the right to vote was only granted to women at the federal level in 1971; marital rape was only recognized in 1992; the federal law on equality was only passed in 1995; equal pay has not been achieved yet in practice; many testimonies of sexual harassment emerge every day; and Switzerland still remains silent on incest and feminicide. Today, the public and political debates on sexual and gender-based violence give Switzerland the opportunity to do better: to bring justice to the victims; to respect its international commitments; but above all to take a first step away from rape culture.

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Notes:

¹ Swiss federal statistical office. Violence. Violence Offences – Definitions. Available at:  https://www.bfs.admin.ch/bfs/fr/home/statistiques/criminalite-droit-penal/police/violence.html

² ATF 132 IV 120 consid. 2.5

³ Council of Europe. Details of Treaty n°210 : Council of Europe Convention on preventing and combating violence against women and domestic violence. Available at :https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210

⁴  Gfs.bern. (2019). Sexual harassment and sexual violence are widespread in Switzerland. Study commissioned by Amnesty International Switzerland. Available at : https://cockpit.gfsbern.ch/fr/cockpit/violence-sexuelles-en-suisse/

⁵ Menichini, M. (2 February 2021). « En Suisse, la définition du viol enflamme la classe politique » RTS Info. Available at : https://www.rts.ch/info/suisse/11943801-en-suisse-la-definition-du-viol-enflamme-la-classe-politique.html

 ⁶ Menichini (2021)

⁷ Amnesty International (22 December 2020). Seuls douze pays Européens disposent de lois basées sur le consentement. Available at : https://www.amnesty.ch/fr/themes/droits-des-femmes/violence-sexuelle/docs/2020/seuls-neuf-pays-europeens-disposent-lois-basees-consentement

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