Federal Council approves extension of the offence of rape

In its opinion of 13 April 2022, the Federal Council welcomes the proposal of the Legal Affairs Committee of the Council of States to extend the offence of rape in the Criminal Code. In future, anyone who overrides the victim's wishes, even without resorting to violence or threats, will be punishable by rape.

In summer 2020, the Council of States decided to split the legislative package on the harmonisation of penalties and to deal with the provisions of the criminal law on sexual offences separately, following a proposal by its Legal Affairs Committee and the head of the Federal Department of Justice and Police. The National Council agreed with this decision.
No means no

The extension of the offence of rape is the central element of the CAJ-E's proposal. The new definition includes all cases in which the perpetrator intentionally disregards the victim's wishes (the principle of refusal, the so-called "no means no" solution). In future, a judge will be able to convict for rape even if the perpetrator does not exert coercion - violence, threats or psychological pressure - on the victim. It will be sufficient if the perpetrator intentionally overrode the victim's verbal or non-verbal wishes to the contrary. A male person can also be recognised as a victim of rape. The principle of "no means no" will also apply to the new offence of sexual assault and coercion.

The majority of the committee rejected the proposal for a solution based on the principle of consent (the so-called "yes means yes" solution). The CAJ-E unanimously approved the draft in the vote on the whole. The Federal Council welcomes the tougher measures proposed by the Committee of the Council of States.

This will bring criminal law in sexual matters into line with developments in society. In particular, the fact that under the current law rape necessarily involves coercion of the victim is widely misunderstood today.

Clarification needed on pornography

The Federal Council agrees with the minority of the committee on one point. It proposes not to introduce a new provision on pornodisclosure as part of the revision of the criminal law on sexual offences, as the proposed offence is too vague. However, in view of the increasingly frequent acts of humiliation on the Internet linked to the dissemination of intimate photos without the consent of the person who is identifiable in them, the Federal Council is currently examining whether there is a need to legislate in this area as part of its work on cyberbullying. It is expected to submit a report on this subject in the summer of 2022 in response to postulate 21.3969.