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CRIME

OPINION: Switzerland’s rape laws are not fit for purpose and reforms are long overdue

As they stand Switzerland's rape laws are more useful to perpetrators of sex assaults than to the victims, writes Clare O'Dea as she explains why new reforms are long overdue.

OPINION: Switzerland's rape laws are not fit for purpose and reforms are long overdue
Switzerland's Federal Criminal Court. (Photo by Fabrice COFFRINI / AFP)

It is widely accepted that Switzerland’s current rape law, last revised thirty years ago, is not fit for purpose. Partly in response to international obligations, the Swiss political system is finally addressing the problem and concrete progress is inching closer.

The failings in the current legal model include a too-narrow definition of what sexual act constitutes rape, the exclusion of male victims of rape, the requirement to prove violence or coercion, and the soft sanctions against convicted rapists.

Taken together, these weaknesses make Swiss rape legislation as it now stands a lot more useful to perpetrators of rape than it is to victims.

There were 757 rapes reported in Switzerland last year, and only 77 rapists convicted, some of whom did not receive custodial sentences. The overall number of reported sex offences in 2021 was 6,909. 

But extensive change is coming in all four problem areas, partly thanks to the Istanbul Convention on violence against women. A revision of the Swiss law, compliant with the Convention, is working its way through parliament. The Council of States has just supported the reform positions of the Federal Council, and the National Council is expected to go at least as far when it takes up the debate later this year.

The definition of rape is set to be expanded to include any kind of penetration against the will of the person, not just vaginal penetration by a penis. This means more sexual acts can be prosecuted as rape. Combined with the use of the gender-neutral word ‘person’, it also means that males will be recognised as victims of rape for the first time under Swiss law.

The Council of States also voted to introduce a minimum two-year prison sentence for convicted rapists. This is important because sentences under two years are automatically suspended in Switzerland, which has meant some rapists walk away without serving any time behind bars.

It is hard to imagine the anguish of victims seeing their abusers get off so lightly, without any prison time or even being named and shamed in their community. In ordinary circumstances, the names of convicted criminals are not made public in Switzerland.

These changes, if accepted by the larger parliamentary chamber, will represent a major step forward for victim’s rights, and bring Switzerland into line with most other European countries on rape law.

The final unresolved issue is how to proceed when the use of force is no longer part of the legal definition of rape. We know it is possible to do something to someone against their will without using force. There are many reasons victims may not resist, including the phenomenon of freezing in shock.

There is a growing international movement to reconceptualise rape and other sexual offences as violations of the victim’s sexual autonomy. More and more European countries – 13 and counting – are moving away from the violence-based definition of rape to a broader definition of rape being sex without consent.

Right now in Switzerland, the camps are split into those who advocate for the explicit expression of consent – ‘Only Yes Means Yes’ – as the best legal formula to establish rape, and those who say it’s the refusal of consent that must be expressed – ‘No Means No’. The Council of States opted for No Means No.

Unfortunately, all of this may be academic in a court setting where there is no record of such statements on the part of the alleged victim either way.  The use of force, threats or psychological pressure, is already hard to prove. So what’s the point of the change?

What it will hopefully do is reinforce the message that it is imperative to listen to the person you are about to have sex with and that what they want matters. Even if you don’t care what they want at that moment, the law does.

It tells potential victims that their wishes matter, that consent is not something to be brushed aside to satisfy one person’s demands. It is good to have this spelled out in law. Remember that marital rape, for example, only entered the Swiss criminal code in 1991.

When it comes to giving consent, I don’t think it matters which model you use – say yes or say no – putting consent at the top of the agenda between sexual partners will help make a cultural difference. But a lot more needs to happen outside the legal arena to make this a safer country for women and girls in particular.

Sadly, the unreported incidence of sexual assault and rape is high. Amnesty International commissioned a survey of women in Switzerland in 2019 in which 12% of respondents said they had had non-consensual sexual intercourse. More than one in five (22%) had been subject to unwanted sexual acts in their lives. Only 8% of these victims notified the police.

Could we produce a new generation of women who feel secure enough to say ‘I don’t want this’ and a new generation of men who would listen to them and respect their wishes? We are not there yet, especially not with the ubiquity of porn culture that has become markedly more violent towards women.

There are still some hard questions to be asked about why rape happens. Why is it that a subset of men will disregard the dignity, comfort or safety of another person for their own sexual gratification? How are we as a society contributing to this sense of entitlement?

Ultimately, weeding out rape culture will achieve a lot more than the courts can, even with this better law.

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CRIME

FACT CHECK: Do foreigners commit more violent crimes than the Swiss?

Around 25 percent of the Swiss population is of foreign origin. Is the crime rate really higher among them?

FACT CHECK: Do foreigners commit more violent crimes than the Swiss?

Crime rates among foreign residents is a frequent political talking point in Switzerland, particularly among the right-wing Swiss People’s Party (SVP). 

Police in Zurich were forced to provide the nationality of all offenders after an SVP-supported referendum in January 2021 required them to do so

However, new statistics show that most crimes in Switzerland are committed by foreign nationals, including those of a violent nature.

Foreigners — including permanent residents, asylum seekers and tourists — commit more offences with a violent nature than native Swiss, according to data published by the Federal Statistical Office (FSO) in October 2021.

Of the 270 attempted homicides registered in Switzerland in 2020, 99 — almost 33 percent — were committed by Swiss people. The other cases are attributed to foreign nationals.

The FSO also found that Swiss citizens were responsible for less than half of the cases in which a serious bodily injury was inflicted on a victim: 317 out of the total of 712 registered acts, which translates to 45 percent; the remaining 55 percent of these crimes were committed by foreigners.

In both cases this is a higher percentage than that of foreigners as a part of the Swiss population. 

According to Switzerland’s Federal Office of Statistics, foreigners made up 25.1 percent of the population at the end of 2020. While this figure does not include tourists, it is still higher than the 33 percent and 55 percent figures listed above. 

READ MORE: Where in Switzerland do all the international residents live?

The study didn’t altogether absolve the Swiss.

“Foreigners commit violent crimes more often, but that doesn’t mean that the Swiss don’t do the same”, Baier said.

“There are many Swiss who think they have a right to hit anyone who looks at them in a wrong way”.

For instance, in the past six years, serious physical injuries have been inflicted by Swiss people more often than by foreign nationally, especially among those under 24 year of age, FSO reported.

In 2020, nearly half of all crimes were committed by Swiss people; however, these figures have to be put in perspective: since foreign residents constitute only around a quarter of the total population, an above-average number of offenses were committed by foreigners, even among young suspects.

Why do foreigners have a higher rate of violent crime in Switzerland?

There are two explanations why people of foreign origin resort to violence more often that their Swiss counterparts.

According to Dirk Baier, violence researcher at the Zurich University of Applied Sciences, the lower level of income and education among foreign residents is one of the reasons.

“This economic disadvantage can lead to a corresponding reaction: what you cannot buy, you can steal”, he told Swiss news outlet 20 Minutes.

Baier said that these factors were far more important than if someone was a foreigner or not. 

“If you consider young people who have roughly the same attitudes and social conditions, you no longer see any differences in the violent behaviour of Swiss and foreigners”.

Living conditions of these economically disadvantaged groups is also a contributing factor.

“They live in smaller apartments and often with several siblings. Those who spend a lot of time in public space are also more likely to get into conflicts that can escalate into violence”.

READ MORE: IN NUMBERS: Which Swiss cities have the highest crime rates?

Baier added that “the increased propensity for violence among foreigners has nothing to do with biology or genes. It is created by external circumstances – and consequently something can be done about it”.

This is echoed by statements from the Swiss government on crime rates of all forms (i.e. not just violent crime)

“The differences between foreigners and Swiss are relatively small when one takes into account the different age and gender structures. If one only considers the resident population (i.e. leaves out asylum seekers and tourists or travellers passing through), the differences are almost completely absent.”

How can this be prevented or curbed?

One way to counteract this trend, Baier said, is to introduce children with a migration background to the education system at an early stage, for example through language lessons.

“Anyone who understands and communicates in the language of the country in which they live will be less likely to resort to violence”.

There are also other social-cultural factors at play.

“This includes the family situation in which someone grows up. If he or she has  a form of upbringing that is characterised by the dominance of the father who uses violence himself, the child is socialised accordingly”, Baier noted.

“An honour to be defended or the protection of the family also made a number of people of foreign origin react more quickly to aggressive stimuli”, he added.

Baier said the government could do more, but was often held back by a cultural reluctance to intervene in family matters. 

“Switzerland could still do a lot here, the reluctance to interfere in family matters is still very great.”

READ MORE: Why do foreigners ‘commit more violent crimes’ than the Swiss?

What nationalities are most implicated in Swiss crime statistics?

People from these 10 countries committed the most crimes, FSO found:

1. Portugal: 1014

2. Italy :866

3. Other nationalities: 827

4. Kosovo: 656

5. Germany: 589

6. Turkey: 435

7. France: 398

8. Serbia and Montenegro: 385

9. North Macedonia: 328

10. Spain: 289

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