This academic paper is written in French
Abstract
The revision of criminal law concerning sexual offenses, which came into effect on July 1, 2024, introduces significant changes aimed at modernizing the Swiss legal framework. The main changes focus on two key aspects: the expansion of the legal definition of rape to include any act involving penetration, and the abandonment of the element of coercion, replaced by the absence of consent in the offenses of sexual coercion (Art. 189 CC) and rape (Art. 190 CC). These modifications, which broaden the scope of the rape offense and place consent at the center of sexual offenses, represent a significant step toward recognizing the importance of sexual self-determination as a legally protected right.
Almost absent from public discourse thirty years ago, the notion of consent has evolved, gaining importance as women and other previously marginalized groups have been recognized as full-fledged subjects of law. The legal debate on the definition of sexual consent in criminal law is thus part of a broader societal debate, accompanied by a profound reconfiguration of social relations between men and women.
In Swiss civil law, specifically according to Article 28 of the Swiss Civil Code of December 10, 1907 (CC; RS No. 210), any violation of personal rights is unlawful unless justified by the victim's consent, an overriding interest, or the law. To be valid, consent must be free, informed, and given by a person capable of discernment, according to Article 16 CC. In criminal matters, consent has several facets. It can constitute an extralegal justification, influencing the punishability of the perpetrator depending on the circumstances and nature of the offenses. It can also constitute an element of the objective typicity of an offense. Indeed, when an objective constitutive element of the legal fact statement refers to the will of the injured party (explicitly or implicitly), consent must be analyzed from the perspective of typicity.
This article examines in detail the implications of the changes that came into effect on July 1, 2024, concerning offenses against sexual integrity, focusing particularly on the replacement of the constitutive element of coercion with that of the absence of consent from the victim. This change marks an important shift in how criminal authorities approach sexual offenses. Under the previous system, coercion was a determining criterion for qualifying an offense as rape or sexual coercion. Now, the absence of consent is at the heart of the definition of these offenses, reflecting a more centered approach on the protection of individuals' sexual self-determination. However, according to the author, by retaining the refusal variant (where the refusal must be perceptibly expressed for the offense to be recognized), the revision only goes halfway. According to her, by maintaining a form of victim responsibility in the qualification of the offense and a presumption of consent to the sexual act, this approach could perpetuate sexist biases and myths about rape. The explicit consent variant, which would have required clear confirmation of consent, would have offered more effective protection of sexual self-determination.
Statistics on sexual violence in Switzerland reveal a high prevalence of these offenses, with a low proportion of complaints filed by victims. This reality highlights the challenges of implementing the new legal provisions and the need for increased support for victims to encourage them to come forward. The phenomenon of tonic immobility, where a victim is unable to react due to shock or fear, further complicates the assessment of consent. This phenomenon is now considered in the revision of criminal law, but concerns remain about its interpretation and application in real cases.
The Istanbul Convention and the case law of the European Court of Human Rights (ECHR) emphasize the importance of consent in cases of sexual violence, requiring that any sexual act without explicit consent be punished. However, member states retain some latitude in the interpretation and implementation of these standards. By opting for the refusal variant, the revision of Swiss criminal law partially aligns with these international standards while leaving gaps in the punishability concerning the protection of victims of sexual violence.
The revision also introduces new provisions, such as Article 197a CC, which deals with "revenge porn," that is, the dissemination of sexually explicit content without the identifiable person's consent. This offense highlights the challenges posed by new technologies and modern forms of sexual violence, underscoring the need for continuous adaptation of laws to respond to contemporary realities.
Although the revision represents a significant step forward, the author criticizes it for not going far enough in protecting victims of sexual violence. The preference for the refusal variant, rather than explicit consent, according to her, maintains a form of victim responsibility in the qualification of the offense and does not allow for optimal protection of sexual self-determination. To achieve true equality and mutual respect in sexual relationships, it seems crucial to overcome these limitations and promote a culture of clear and explicit consent.
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