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Criminal law Why men can’t be rape victims in Switzerland

A young man covering his face with hands

Men and women victims are treated differently under Swiss law when it comes to rape.

(123RF/ Amir Kaljikovic)

Swiss criminal law defines rape as assault during vaginal sexual intercourse with a woman, legally exempting men from the status of victims. A proposal wants a legal reform, forcing parliament to use explicit language.

“Coercing a person of the female gender to endure sexual intercourse” is the Swiss definition for the crime of rape. If a man is raped anally or a woman is penetrated with an object, this is only considered a so called “sexual assault”.

In both cases, courts can hand down maximum prison sentences of up to ten years against the offender, but a minimum sentence of 12 months is only applicable in the case of rape.

As for sexual assault, offenders may only face a monetary fine because it includes a series of other forms of sexual assault considered less serious.

Oral sex

It is a particularity of Swiss law to distinguish between anal rape of a man and vaginal rape of a woman, legally speaking. Most other countries know much broader – and gender-neutral – definitions.

In Germany, sexual acts which involve the penetration of a body, are considered rape by law. This can also include oral sex or inserting a finger into a vagina.

Under British law, rape is defined as the act of inserting the penis into the vagina, the anus or the mouth of another person without the person’s consent.

Lukas Gschwendexternal link, professor of law history at St Gallen University, says the Swiss definition may seem odd from today’s perspective. But there is a historical explanation.

“According to Germanic law tradition, the female integrity was a legal interest protected by the ban on rape up until much of the 19th century,” Gschwend says. In other words, a man raping his wife or a prostitute did not commit a punishable crime. It was considered virtually legitimate and wasn’t considered in violation of the integrity and dignity of a woman.

“However, the anal penetration of a man was not considered an assault of his sexual dignity,” says Gschwend. Even though it was also subject to legal sentences on the grounds of ‘public morality’.

Even the victim risked being sentenced therefore.

“I know of hardly any cases of ‘raped men’ in Swiss legal history,” says Gschwend. “But the number of unreported cases might have been quite high, because men did not go to the police to file a complaint.”

Adapting

In 1991, the government rejected proposals to put homosexual and heterosexual rape on par, citing physiological reasons. But it has changed its mind in the meantime.

In its response to a motion, the government has come out in favour of an amendment to the criminal law, paving the way for legal equality of male victims of rape.

However, the government cautions against including all kinds of coerced sexual acts; instead it wants rape to include only acts “related to sexual intercourse”.

This leaves room for further debate.

Laurence Fehlmann Rielle, the Social Democratic parliamentarian from Geneva who sponsored the motion, is sceptical.

“In my view, every form of coerced vaginal and anal penetration as well as coerced fellatio should be covered by the amendment,” she argues.

The government bill for parliament spells out the definition of “acts similar to sexual intercourse”.

Namely, when the primary genital organ of a person comes in close contact with another person. The government document cites the insertion of a male member in an anus or mouth and the penetration of a vagina or anus with a finger, fist or objects.

And it continues, stimulation of the vagina or the penis through tongue or lips may also be considered an “act similar to sexual intercourse” and therefore could constitute a criminal offence if unwanted.

Such a notion, however, seems to go quite far and will likely lead to more discussions in parliament at a later stage.

On Monday, the House of Representatives approved the motion. The Senate still has to agree before the government drafts a bill for a legal amendment. 


Adapted from German/urs, swissinfo.ch

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