Stealthing as an independent sexual act, but not as sexual abuse under Art. 191 of the Swiss Criminal Code

Facts

The Federal Court decision deals with the criminal assessment of the so-called "stealthing", i.e., the secret removal of the condom during sexual intercourse without the knowledge and against the declared will of the sexual partner. The public prosecutor's office had charged the accused with sexual abuse under Art. 191 of the Swiss Criminal Code, which the lower courts had, however, rejected.

The facts can be summarized as follows: The accused had secretly removed the condom during consensual sexual intercourse with his partner and continued the intercourse unprotected, although the partner had expressly agreed to protected intercourse.

Considerations

The Federal Court concludes that the removal of the condom against the will of the partner constitutes an independent sexual act that affects the scope of protection of Art. 191 of the Swiss Criminal Code - the sexual integrity and self-determination. The partner had set an essential condition for sexual intercourse by insisting on the use of a condom. By secretly removing the condom, she was deprived of the possibility to shape the sexual contact in a self-determined and responsible manner.

However, the Federal Court denies that the accused had "incapacitated" the partner within the meaning of Art. 191 of the Swiss Criminal Code. The deception of the accused did lead to the partner having no opportunity to fend off the unprotected penetration as long as the accused pretended to continue protected intercourse.…