On May 11, 2022, the Swiss Federal Supreme Court (Bundesgericht, BG) held in case 6B_34/2020 and case 6B_265/2020 that the act of “stealthing” does not fall under the offense of “sexual acts with persons incapable of judgement or resistance” according to article 191 of the Swiss Criminal Code (Schweizerisches Strafgesetzbuch, StGB). “Stealthing” means the “removal of the condom during sexual intercourse in violation of an agreement to the contrary and without the knowledge of the sexual partner.”
Facts of the Case
The judgments concerned two cases in which the defendants were charged with “stealthing” according to article 191 of the Swiss Criminal Code. They each had consensual sexual intercourse with a female partner, who alleged that she had expressly agreed to protected sexual intercourse only. Nevertheless, the defendants stripped off the condoms during intercourse without the female partner noticing. (Case 6B_34/2020, para. B; Case 6B_265/2020, para. A.) In 2019, both defendants were acquitted of the charges in the first instance, and the acquittals were confirmed in the second instance by the Higher Court of the Canton of Zurich (Obergericht des Kantons Zürich) and the Cantonal Court of the Canton of Basel-Landschaft (Kantonsgericht Basel-Landschaft).
The public prosecutor’s offices of Basel-Landschaft and Zurich each filed an appeal to the Swiss Federal Supreme Court against the decisions of the Zurich and Basel-Landschaft cantonal courts.
The Federal Supreme Court found the aspects of the appeals regarding whether the defendants were guilty of sexual harassment according to article 198 of the Swiss Criminal Code reasonable and remitted the cases to the lower instance. However, the court rejected those aspects contesting the acquittal on the charge of violating article 191 of the Swiss Criminal Code.
Article 191 of the Swiss Criminal Code provides that “any person who, in the knowledge that another person is incapable of judgement or resistance, has sexual intercourse with, or commits an act similar to sexual intercourse or any other sexual act on that person shall be liable to a custodial sentence not exceeding ten years or to a monetary penalty.” In line with the case law of the Federal Supreme Court, persons are considered incapable of resistance within the meaning of article 191 if they are unable to defend themselves against unwanted sexual contact because they cannot (effectively) express their will to defend themselves or convert it into an act of resistance. According to the court, “[t]he reasons for an inability to resist may be permanent, temporary, or situational, for example mental impairment as a result of severe intoxication with alcohol or drugs, lack of physical responsiveness, drowsiness, or a mistake about the identity of the sexual partner.” Therefore, article 191 does not apply if persons are unable to react because they were surprised. (Case 6B_265/2020, para. 3.2; Case 6B_34/2020, para. 2.2.)
The court ruled that “stealthing” does not involve incapacity to resist in that it is characterized by the deceived person’s mistaken belief that protected sexual intercourse is being practiced. For this reason alone, there is no need to react defensively. What is decisive in the opinion of the court is, however, that the victim retained the ability to react. Therefore, the incapacity to resist was not a consequence of a cognitive, psychological, or physical state of weakness. However, a cognitive, psychological, or physical state of weakness is precisely what a conviction for a sexual act with a person incapable of judgment or resistance requires, the Federal Supreme Court explained. (Case 6B_265/2020, para. 5.5; Case 6B_34/2020, para. 4.5.)
The Swiss parliament — the National Council and the Council of States — is currently debating a draft act amending the sexual offenses addressed in article 189 (indecent assault) and article 190 (rape) of the Swiss Criminal Code. According to the draft, sexual offenses should cover not only acts where resistance has to be overcome, but also acts that the perpetrator performs or allows to be performed on the victim against her or his opposing (verbally or non-verbally-expressed) will without the need for an element of coercion to be involved (“no means no”). The Swiss legislature will, according to the draft, refrain from creating an offense that explicitly criminalizes stealthing, but it plans to make it punishable under articles 189 and 190 of the Swiss Criminal Code.
Other jurisdictions have explicitly outlawed stealthing. On June 6, 2022, Tasmania became the second Australian jurisdiction to make stealthing illegal, after the Australian Capital Territory amended its consent provisions with respect to certain sexual offenses in October 2021.Prepared by Karen Ungerer, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist