So, yes or no?

So, yes or no?

Yes is yes, no is no, other variations... It's a bit confusing with all the information that's appeared in the media recently about the definition of rape! Can you shed some light on this in a few simple words?

A, Vaud

Indeed, debate is raging on this thorny issue, with the aim of defining what behaviour will henceforth be permitted or prohibited in intimacy, given that mores have evolved considerably since our rules on the subject were drafted. What everyone agrees on is that the definition of rape given by the Swiss Penal Code to date is outdated, and the text as currently drafted is in any case not an inclusive standard for the various dramatic situations that can occur, since it basically only covers cases where a woman is forcibly penetrated by a man...

However, the proposed revision of this criminal offence has taken several years to come to fruition, and has had to go back and forth between the Federal Chambers several times, as it has given rise to so many proposals at parliamentary level. One of the variants discussed was based on the principle of "only a yes is a yes", which implies that all sexual relations must be unequivocally consented to by all partners. In other words, if there is no clear consent, there is rape. Such a formulation, which was favoured by the National Council, raises obvious problems of proof and places spontaneous sexuality in the category of high-risk legal activities...

The senators of the Council of States were more conservative and supported the "no means no" variant, which stipulated that rape could only be considered to have occurred if the victim had expressed her refusal to have sexual relations. However, this proposal had the major disadvantage of not providing sufficient protection for victims who are unable to express their refusal, as is unfortunately sometimes the case.

A compromise was therefore reached between the two houses of parliament and a third formulation, based on refusal while taking into account the state of shock, was drawn up and accepted. As a result, rape will now be considered to have occurred not only when the victim expressly refused to have sexual intercourse, verbally or non-verbally (for example, by shaking her head or turning away), but also when she was unable to express her refusal clearly due to a state of psychological block that paralysed her at the time of the event, a state known as catalepsy or tonic immobility.

It is therefore the variant of "no means no, even when that no is implicit" that will normally come into force in the future revised Criminal Code once the legislative process has been completed.

The definition of rape will also be extended and adapted so that any sexual intercourse against the will of another person may constitute rape, regardless of the sex of the victim.