Rape committed within marriage

Rape committed within marriage

"When I got divorced a few years ago, the judge clearly stated that rape did not exist in marriage. I've been told that this has changed, is it true? If so, could I still take action against my abuser?"

J. Geneva

Rape, as defined in the Swiss Penal Code until 1992, was punishable by the use of violence or serious threats to force a woman to undergo a sexual act outside marriage. From then on, the offence of rape could not be committed within marriage. Criminal law has evolved slowly; between 1992 and 2004, rape could be committed within a married couple, but it was only prosecuted on complaint. It is only since 2004 that such an act between spouses has been prosecuted ex officio on simple denunciation.

It is possible to a certain extent to lodge a complaint about something that happened several years ago, but it should be noted from the outset that when the acts you mention were committed, they were lawful. It is not possible to punish behaviour that was not punishable at the time it was committed, simply because it subsequently became illegal. Article 2 of the Criminal Code clearly states that it only applies to people who commit a crime or an offence after the entry into force of the Code. The introduction of new provisions therefore only applies to the perpetrator of reprehensible behaviour if they are more favourable than the old ones. In your case, the new law is unfavourable to your ex-husband, so it will not be possible to punish him under the new legislation for acts committed under the old provisions.

It should be pointed out that the Criminal Code evolved in parallel with the Civil Code, which at the time provided that the husband had many prerogatives over his wife. Marital duty thus seemed to justify the non-existence of rape within the couple...

It is also worth mentioning that the offence of rape currently provided for in the Criminal Code only punishes the sexual act imposed on a woman. A man cannot therefore be the victim of rape, but only of sexual coercion, which punishes anyone who forces a person to undergo an act similar to sexual intercourse. The maximum custodial sentence - 10 years - is the same for both offences, but the minimum sentence of one year for rape is higher, which is regularly resented by male victims and could be the subject of a future legislative review.