In a decision to bepublished ( 6B_894/2021 of 28 March 2022 ), the Federal Court considers that the current criminal law does not allow the absence of consent during sexual relations to be interpreted as a sufficient condition to convict a defendant for sexual coercion or rape.
No means no” was preferred to “yes means yes”.
A/ THE FACTS
On the night of November 30 to December1, 2017, after meeting in a bar in Geneva where they consumed a few beers, chatted, danced and flirted, A. and B. went to the latter’s home to smoke a cigarette. Once in the apartment, A. performs oral sex on B., followed by intercourse. On December1, 2017, A. files a criminal complaint against B. for, among other things, sexual coercion and rape.
B was sentenced on September 2, 2020 by the Correctional Court of the Republic and Canton of Geneva for sexual coercion and rape to a 3-year prison sentence with partial suspension. His expulsion was ordered and he was ordered to pay A. CHF 10,000.00 as compensation for moral damages, as well as CHF 20,362.20 for his lawyer’s fees.
B. is appealing against the first instance judgment. On May 31, 2021, the Criminal Appeal and Review Chamber of the Geneva Court of Justice acquitted B. of the charges of sexual coercion and rape, thereby rejecting A.’s civil claims.
A. brought this case before the Federal Court.
The judges at Mon-Repos will have to rule on the expression of consent by the victim in the case of sexual assault, in the light of the Istanbul Convention and the case law of the European Court of Human Rights (ECtHR). The central question is whether Art. 189 PC (sexual coercion) and Art. 190 PC (rape) should be interpreted according to the principle of the absence of the expression of consent (” yes, it is “) or on the contrary according to the principle of that of the refusal expressed by the victim (” no means no “)?
B/ THE LAW
- Challenge to the establishment of facts
1.1 The Federal Court refers in its entirety to the “factual” part of the decision of the cantonal court, which had proceeded to explain the content of the successive declarations of the parties and the witnesses heard, as well as the content of the different material evidence (recital 2.4.1 of the judgment under review).
After having examined in detail the establishment of the facts as retained by the cantonal authority (recital 2.4 of the judgment under review), the federal judges confirmed that the thesis that the appellant had been drugged should be rejected and noted that the parties had left the U. bar together. bar in Geneva, and that they then went to the respondent’s apartment where they had a sexual act, i.e. fellatio, followed by sexual intercourse (recital 2.4.3 of the judgment under review).
1.2 It remains for the Federal Court to determine whether the acts were consented to by B. or imposed by A. In the presence of a case of “declarations against declarations”, the cantonal court had assessed and confronted the credibility of the statements of the two protagonists and had come to the conclusion that this was average, in equal measure, with the consequence that, in respect of the presumption of innocence, the version of the appellant did not have to take precedence (recital 2.4.3 of the judgment under review)
To establish the facts that took place in the apartment, the cantonal court took into consideration the few objective elements available as well as those common to the accounts of the protagonists or, failing that, conceded by one or the other. In essence, A. did not no manifestation of violence other than biting was reportedAccording to his first statements, they would have taken place before the fellatio, whereas, according to his version given before the Public Ministry, they would have taken place during the sexual act, which was in line with B.’s version and should therefore be privileged, also with regard to the principle of in dubio pro reo. Furthermore, assuming that B. had bitten A. or given her one or more hickeys in a previous phase, she had only complained that it was painful (“it hurts, stop” or “ouch“), without demonstrating a lack of consent in relation to intimate relationships. In this respect, B. herself had stressed that she had been passive, even that she had “acted as if it was cool”. A. had also asked B. to wear a condom, and B. complied and went to get one from a jar in the living room, even though he would have preferred not to. A. had not expressed any objections and, above all, had not taken advantage of this moment to leave, but had instead simply remained on the bed. An attempt to put on the protection, apparently by A., had taken place but B. had wanted a blow job. He had placed himself astride A.’s chest and presented him with his sex. It was not found that he had said to A.“take her, you cunt“, the Court of First Instance having rejected this version (prohibition of reformatio in pejus) and A. having varied on this point, not mentioning it again at the appeal stage. Thus placed under the weight of B., A. could only with difficulty resist; she could nevertheless have expressed her disagreement, by the word, by struggling with the bottom of her body or at least by keeping her mouth closed, which she had not done. Instead, she had complied, briefly. B. then opened a second condom and A. placed it on her sex before penetrating her vaginally. A. had remained passive until ejaculation, but had answered in the affirmative when B. had asked her if she liked “that”, according to her own statements to the Public Ministry. By the time of orgasm, B. had bitten or “nipped” A., giving her hickeys. The version of the hickeys had to be retained, as it was the one most favorable to the defense while remaining compatible with the injuries found by the forensic doctors (see recital 2.4.4 of the judgment under review).
According to the cantonal court, given the course of events in the apartment, it was quite possible that A. would not have wished to have an intimate relationship with B., either from the outset – Flirting with a stranger during a party, kissing him and following him home was not a blank check – or because other elements, notably the uninviting aspect of the apartment and the music played, had made him change his mind. It was also possible, given A.’s hasty departure in B.’s pants immediately after the act, her sincerity in the procedure and her attested psychological state, that she was quickly invaded by a feeling of terror, notably because of a possible resurgence of the reminiscence of a previous rape suffered. It is this feeling of terror that would have led her to give up all resistance and to take refuge at times in a state of dissociation, according to her statements. However, there was no evidence that B. had knowingly caused this terror, as A . had stated before the Court of Appeal that it was the situation that was terrorizing and not B.’s behavior. It could not be admitted that B. had understood that the one who was considering as a one-night stand was not or no longer consenting. At the very least, the only indication that A. perceived something was wrong was that B. had followed A. with the idea of trying to find her when she suddenly left the premises. However, although B. apparently gave up quickly, his behavior could also be attributed to a lack of understanding of such a reaction after a relationship that had, from his perspective, gone well. The fact that B. then went to retrieve his bicycle and returned without doing anything to erase the traces of A.’s passage in his apartment was rather in the direction of a clear conscience (recital 2.4.5 of the judgment under review).
1.3 Therefore, the Criminal Court of the Federal Supreme Court concludes that the assessment of the facts made by the cantonal court was clearly not untenable (paragraph 2.5 of the judgment under review).
- Notion of “consent” in sexual assault offences: “yes means yes” or “no means no”?
2.1 In a second grievance, A. complains that the Court of Appeal did not correctly interpret Art. 189 PC (sexual coercion) and Art. 190 PC (rape) in the light of Art. 36 § 1 of the Council of Europe Convention of May 11, 2011 on Preventing and Combating Violence against Women and Domestic Violence (hereinafter: Istanbul Convention; SR 0.311.35), and the case law of the ECtHR (recital 3 of the judgment under review).
Recalling first of all the relevant legal bases (recitals 3.1, 3.2 and 3.3 of the judgment), the Federal Court sets out in detail its jurisprudence on several concepts such as that of “consent.” and that of the “psychic pressures”, while noting that rape and sexual coercion involve the use of a means of restraint (recital 3.3 of the judgment under review and the numerous references cited).
The judges of our High Court also recall that, in subjective terms, sexual coercion and rape are intentional offences, which implies that the perpetrator must know or accept that the victim is not consenting. Determining what a person has known, wanted, considered or accepted is a matter of the content of thought, i.e. “internal” facts. The subjective element is deduced from an analysis of the case in question, which makes it possible to draw inferences about the author’s inner dispositions on the basis of external elements. In the case of coercion in sexual matters, the subjective element is achieved when the victim gives obvious and decipherable signs of her opposition, recognizable to the author, such as crying, demands to be left alone, struggling, refusing attempts at coaxing or trying to escape (recital 3.4 of the judgment under review and the references cited).
Finally, the judges of the Court of Criminal Law recall that the principle of legality(nulla poena sine lege), whereby a penalty or measure may only be imposed for an act expressly punishable by law (Art. 1 StGB), is violated if a person is prosecuted for conduct that is not covered by the law; or if the application of criminal law to a particular act is based on an interpretation of the criminal law that exceeds what is permissible under the general principles of criminal law; or if a person is prosecuted on the basis of a criminal law standard that has no legal basis This principle implies that the law must be formulated in such a way as to allow the citizen to comply with it and to foresee the consequences of a certain conduct with a certain degree of certainty depending on the circumstances (recital 3.5 of the judgment under review and the references cited).
2.2 In this case, the cantonal court held that B. had not reduced or destroyed A.’s capacity to resist by administering GHB and that she had thus gone to her home of her own free will. In the apartment, the interested party had spontaneously decided to stay, after having considered leaving the premises, where she had never been locked up without the possibility of leaving. She had not resisted B.’s advances, nor had she even expressed an intelligible refusal, whether it was while they were undressing and getting into bed, during the fellatio and just before or during the sexual act. A.’s only negative reaction was due to the pain caused by the bites (in his version) or hickeys (in B.’s version, which was preferred). It is possible that A. was in a state of terror, with a dissociation mechanism, but B. could not have been aware of this since he had not objectively done anything to induce the state. If A. was perfectly legitimate to refuse or interrupt the acts, it resulted from the facts that she had not done so She had even, at times, given the opposite signals (she had acted “like it was cool,” had asked B. to put on a condom, had answered in the affirmative when he had asked her if she liked “it”).
Consequently, the argument raised by A., according to which it was “clear” that she did not consent, but that B. had not wanted to hear her, is rejected (recital 3.6 of the judgment under review).
2.3 Referring to the Istanbul Convention and the case law of the ECtHR, A. argues that this convention is based on the principle of the absence of the expression of consent (“yes, it is“) to define sexual assault offences and not on the basis of an expressed refusal by the victim (“no, it’s no“). In A.’s view, the Court of Appeal violated international conventions by acquitting B. because it would not have expressed her consent at any time, because of the state of stupor in which she was and would have been unable to do so. A. would have remained passive during the entire duration of the sexual acts and At no time did B. stop or question whether his partner consented to the actions he was undertaking. This behaviour would demonstrate that B. had consciously chosen not to pay attention to A.’s passive behaviour and had, instead, taken advantage of it to satisfy his own desires. He could not have been unaware of A.’s lack of consent and thus acted intentionally. According to A., B. had engaged in conduct that should be considered a criminal offence of sexual assault in accordance with the principles set out in international conventions and related case law. The appellant submits that Articles 189 and 190 of the Criminal Code should be interpreted in accordance with these texts (recital 3.7 of the judgment under review).
According to Art. 36 § 2 of the Istanbul Convention, consent must be given voluntarily as a result of the free will of the person considered in the context of the surrounding circumstances. However, the Parties remain free to decide on the exact wording of the legislation and the factors considered exclusive of free consent. The Federal Court notes, in this respect, that the question of whether Swiss law as currently formulated meets the requirements of the said Convention may remain undecided in the present case, as the Convention does not create subjective rights for the person invoking it (recital 3.7.1 of the judgment under review).
The jurisprudence of the ECtHR prescribes, through art. 3 and 8 ECHR, the positive obligation for States to adopt provisions that effectively punish any non-consensual sexual act, even when the victim has not offered physical resistance. However, it also recognizes that states undoubtedly have a wide margin of appreciation as to how to ensure adequate protection against rape. The ECtHR notes that traditionally, the domestic law and practice of a number of countries required proof of physical force and physical resistance in rape cases. However, in recent decades, there has been a clear and consistent trend in Europe and other parts of the world away from formalist definitions and narrow interpretations of the law in this area. The Court of Criminal Law notes that the requirement that the victim must physically resist is no longer valid in the legislation of European countries. It follows that the ECtHR only examines whether, in the case submitted to it, the facts denounced by the applicants are covered by the legislative framework for the protection of the rights of victims of sexual violence – and not whether this framework, in general, is sufficient in the country concerned – and whether the alleged victim has been able to benefit from effective protection of his rights. Furthermore, the Federal Court noted that the ECtHR had not found any violation of Articles 3 and 8 ECHR in relation to the Bulgarian, Turkish, Italian, Croatian or Romanian rights, which, as formulated, are not based on the principle of consent. Finally, the ECtHR has never had to rule on a case in which only the absence of expression of consent is at stake (“yes, it is”). Contrary to what the appellant asserts, it is not known what solution the Court would adopt in such a situation (recital 3.7.2 of the judgment under review).
2.3 Thus, according to the legal text and jurisprudence, for there to be coercion in sexual matters, the victim must not consent (“no means no“), the perpetrator must know or accept this possibility and override it by taking advantage of the situation (psychological pressure) or by using an effective means (threat or violence). Even if the jurisprudence does not set very high requirements in this area, coercion remains one of the constitutive elements of the above-mentioned offences. The victim does not have to be incapacitated or physically abused by the perpetrator. In the opinion of the federal judges, the interpretation supported by A. omits the requirement of coercion and violates the principle of legality, which requires that this objective constitutive element be taken into account (recital 3.8 of the judgment under review).
C/ THE CONCLUSION
This decision, intended for publication, is in line with the legislator’s decision to revise the criminal law on sexual integrity offences. In its opinion of 13 April 2022(FF 2022 1011), the Federal Council welcomes the proposal of the Legal Affairs Committee of the Council of States. The latter provides, with regard to articles 189 and 190 of the Criminal Code, that acts of a sexual nature which the perpetrator commits on a person or causes to be committed by intentionally ignoring (or by possible fraud) the contrary will expressed verbally or not by the victim, and this without using coercion (” no means no “) will be included in the Penal Code. In addition, the definition of rape will be expanded since the element of coercion will be dropped and the victim may be male. In the view of the Federal Council, this proposal covers all cases in which a perpetrator intentionally overrides the will of the victim, to the detriment of a minority that favors the principle of consent (“yes, it is“).
The Commission thus recommends that, even if the perpetrator does not exert coercion (violence, threats or psychological pressure) on the victim, it will be sufficient for the offence to be committed if the perpetrator intentionally disregards the victim’s verbal or non-verbal expression of the contrary.
For once, the Federal Court interprets the law in force not only historically, but also according to the “zeitgeist”.
As it stands and for the Federal Court, guarantor of the principle of legality, it is therefore the “no means no” that would prevail, but the Parliament – or even the people, given the polemical nature of the subject – could soon take the opposite view,
As for A., it is likely that she will bring this case before the ECHR, given the question left open by the TF concerning the conventional scope of the “yes means yes”.
To be continued…