Urteil des Bundesgerichtshofs – „kurze Dauer“ der Vergewaltigung doch kein Grund für Milderung

Translation:

>__What’s it about?__ The Swiss Federal Court has stated in a judgement released today that the duration of a rape should never be considered in favour of the perpetrator.

>__Background:__ In 2020, a rape took place in Basel. The highest court in Basel reduced the perpetrator’s sentence, partly justifying this decision orally by saying that the act lasted only eleven minutes. The Federal Court upheld this verdict last year, noting: “It is consistent with federal law that the lower court took into account the [relatively short] duration of the rape.”

>Now, another perpetrator has used this judgement to argue that, since his offence was also brief, it should be considered as a mitigating factor. However, the Federal Court dismissed the appeal, asserting that the duration should never be counted as mitigating.

>__How did the Federal Court reach this conclusion?__ The Federal Court explains that rape occurs from the very first moment. This means that once penetration occurs, the victim’s sexual integrity is violated. Under this view of culpability, a “relatively short” duration can in no case be a mitigating factor.

>__Is the Federal Court criticising itself?__ Notably, this ruling was made by a five-judge panel, whereas the Basel case was judged by a three-judge panel. Michele Luminati, a professor of legal history, suggests that the use of a five-judge panel shows that the Federal Court was well aware of the case’s sensitive nature. The language used is also telling: the French version calls the previous reference to duration a “non-sens.” Even in its press release, the Federal Court described the earlier wording as inappropriate.

>__What does this mean for future cases?__ Marianne Heer, a former high court judge, states that if she had to judge a similar case, she would certainly refer to the newer judgement. Agota Lavoyer, an advocate for victims of sexual violence, emphasises that this is an important ruling. It opposes the trivialising and victim-blaming language of the Basel case. While it may not change anything legally, it sends a significant message to victims.

>__What does this mean for court communications?__ Michele Luminati notes that it is increasingly important for courts to write judgements in a way that is understandable not only for other legal professionals but also for the general public. By proactively criticising the earlier wording, the Federal Court has acted appropriately in this case.

It’s really good that they clarified this point.

What an insane ruling to begin with. They should be ashamed of themselves