A man took care of his stepdaughter since she was four years old, and she always called him "Daddy". When she was 19 he laid in bed with her and sexually assaulted her. Out of fear, she didn't resist, but pretended to be asleep and turned away several times to signal that she didn't want the sexual acts.
A criminal case ensued. The stepfather mostly admitted to the sexual acts but said they were consensual. However, the public prosecutor believed the young woman and stated in writing that "there could be no question" that the victim had consented to the sexual acts. And then what happened? The criminal proceedings were discontinued. Not, as is so often the case with sexual offenses, for lack of evidence. But because the accused's behavior was "reprehensible", but unfortunately not relevant under criminal law.
This is not a case from the last century - it happened in the last five years in Switzerland. It is one of the case studies from cantonal practice with which Nora Scheidegger and I have shown in our publication that the accused can knowingly disregard the will of the victim without making themselves liable to prosecution for rape or sexual assault.
Today's crime of rape, i.e. our idea of "real" rape, is based on a stereotypical sexual offense: the stranger who violently attacks the victim and leaves traces. The stereotypical victim defends themselves, shows signs of injury, and reports the attacker immediately. We have all been socialized with this stereotypical image.
And our valid, but outdated, sex criminal law is based on these stereotypes. It was last revised 30 years ago and corresponds neither to today's social context nor to the state of knowledge about victimology and psychotraumatology. Specifically: "Rape" (according to the Criminal Code, coercion of a female person to have sex) or "sexual coercion" (according to the Criminal Code, coercion of a person to engage in cohabitation-like and other sexual acts) is only considered such if a so-called act of coercion is present. An act of coercion is to threaten a person, use force against them, put them under psychological pressure, or render them unable to resist. So it happens that countless sexual offenses do not even get to court because the accused, as in the example above, neither used nor threatened violence.
Most perpetrators do not use violence. First, because they do not correspond to the stereotypical image of the violent psychopath, and second, because it is simply not necessary: Most people freeze when they find themselves in such a threatening situation. That one would defend oneself against sexualized assaults is widespread overconfidence and a persistent myth. Without resistance, the perpetrators do not have to use or threaten violence, as they exploit the victim's excessive demands and fears and the trust that usually exists. It is likely that perpetrators would become violent if the victim resisted forcing them to do so. One could, therefore, heretically claim that ultimate responsibility for whether a sexual assault can be legally classified as a sexual offense lies with the victim. As a result, the current law cements rape myths, devalues victims, and the accusations that victims already make themselves anyway ("Why didn't I fight back more?") are institutionally reinforced.
In short: there is an urgent need for action. Politicians have finally recognized this. The Legal Commission of the Council of States recently approved the new proposal to introduce the so-called "No means No" solution and to dispense with the element of coercion.
Am I satisfied? No.
The fact that there is finally a willingness to do without the element of coercion is up-to-date, important, and correct. But given that it could take another 30 years for sex criminal law to be revised, it would be a missed opportunity not to do it properly and do justice to all victims. The “no means no” solution is not enough for this. For this, a “first yes means yes” solution is needed. How so?
Imagine: someone you only know vaguely one day stands at your door with their suitcase, walks into your apartment, and stays. When you complain at some point, the person reproaches you for not saying "no". What sounds absolutely unimaginable would be the state of affairs if the "no means no" solution was introduced: if a victim endures the sexual acts without having consented in any way, it would not be considered rape. And that's dangerous because that means nothing more than that the large gray area between a "yes" and a "no" is defined as "yes": as long as you don't hear a clear rejection, it is implied that people agree. The “first yes means yes” solution would do away with this large gray area.
The "first yes means yes" solution would also take into account the moments when a victim is unable to say "no": because of excessive demands, out of fear, or because of a power imbalance. The message would be loud and clear: silence is not a yes. "I'm tired" is not a yes. "I'm not sure" is not a yes. Turning away is not a yes. It's not consensus. Sex is when everyone agrees to everything - everything else is violence.
And no, that doesn't work - as is always claimed - at the expense of eroticism. On the contrary: what could be more erotic than a "yes"? As a "Yes, do that!", a "Yes, that turns me on!" or a «Yes, I want you right now!».