Author: Lawyer Enrico Germano.
In the Netherlands on 14 March 2023, the Court of Dordrecht sentenced a 28-year-old man to three months’ probation for removing a condom without his partner’s knowledge during consensual sexual intercourse. The Dutch court, however, acquitted the man of the more serious charge of rape (i.e. act of rape by force), but held that this behaviour was a form of coercion on his partner for abusing the trust the woman had placed in him, with the real risk of exposing her to pregnancy or a sexually transmitted disease.
This new conviction follows what happened in Germany, where a man was found guilty of sexual assault by stealthing in 2018, sentenced to eight months on probation because he took off his condom during sexual intercourse. However, the same court did not consider it to be rape but it remained a controversial decision.
In Switzerland, on 9 January 2017, the Criminal Court of First Instance in Lausanne sentenced a man for rape under Article 190 of the Swiss Criminal Code (SCC) to 12 months on probation for taking off a condom without his partner’s knowledge. The man appealed against this decision, and the Court of Criminal Appeals of the canton of Vaud confirmed the same conviction, but reclassifying the offence no longer as rape, but as sexual acts with persons incapable of judgement or resistance, under Article 191 SCC.
However, on 28 November 2019, in a similar case, the Supreme Court of the canton of Zurich expressed a contrary opinion, holding, albeit with regret, that this practice did not constitute a criminal offence. In paralell to the Zurich case, another defendant had previously been acquitted by the Appeal Court of the canton of Basel-Landschaft on 6 June 2019 of the charge of sexual acts with persons incapable of judgement or resistance.
Both 2019 cantonal cases from the cantons of Basel-Landschaft and Zurich were brought before Switzerland’s highest judicial court, which decided on 11 May 2022 for both cases that the appeal of the public Prosecutors of the two cantons was partially upheld. The judgement of the Cantonal Court of the Canton of Basel-Landschaft of 6 June 2019 and the judgement of the Cantonal Court of the Canton of Zurich of 28 November 2019 were set aside and the matter was referred back to the respective lower cantonal court for a further decision.
In addition, the Federal Supreme Court, in a press release of 9 June 2022, specified in this connection that under current law, the removal of a condom during sexual intercourse without the knowledge of the partner and contrary to previous agreement (‘stealthing’) does not fall under the offence of ‘sexual acts with persons incapable of judgement or resistance’. The Federal Supreme Court confirms on this point the two decisions of the cantons of Zurich and Basel-Landschaft. The cantonal authorities will nevertheless have to examine whether the preconditions for the offence of sexual harassment are met. The Federal Supreme Court did not have to examine these two cases from the point of view of the spread of disease.
However, it should be pointed out that the offence of sexual harassment under Article 198 SCC is punishable (only), on complaint, by a fine. It would therefore only be a contravention against sexual integrity.
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2
Corriere del Ticino, news, Svizzera, 14.03.2023
3 Spiegel.de, 18.12.2018, “In Berlin ist ein Mann zu einer achtmonatigen Bewährungsstrafe verurteilt worden, weil er beim Beischlaf das Präservativ abzog. Eine Vergewaltigung sah das Gericht aber nicht gegeben. Das Urteil ist umstritten”.
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Décision de la Cour d’appel pénale, Tribunal cantonal du Canton de Vaud, 8.05.2017, publiée le 28.08.2017
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Urteil des Obergesrichts des Kantons Zurich, I. Strafkammer, vom 28.11.2019 ; BGE 6B_265/2020, Urteil vom 11.05.2022
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Urteil des Kantonsgerichts Basel-Landschaft, Abteilung Strafrecht, vom 6.06.2019 ; BGE 6B_34/2020, Urteil vom11.05.2022
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Press release of the Federal Supreme Court of 9 June 2022
