Protection of children's sexual freedom: Clarification of case law on coercive situations and capacity to discern

Facts

Parties: Appellant A. and respondent B. (daughter of the appellant's then partner).

Allegation: Multiple sexual abuse of B. between autumn 2013 and 30 September 2015.

Courts: District Court of Pfäffikon (judgment of 16 January 2018), Higher Court of the Canton of Zurich, II. Criminal Chamber (confirmation of the guilty verdict), Federal Supreme Court (dismissal of the appeal).

Main allegations: Multiple rape, sexual coercion, sexual acts with children, pornography, and depictions of violence.

Main issue: Application and clarification of case law on the protection of children's sexual freedom, particularly regarding coercive situations in cases of child abuse in the social environment and the capacity to discern of children.

Considerations

The case law on the protection of children's sexual freedom, particularly regarding coercive situations in cases of child abuse in the social environment, has been clarified. Sexual assaults on children under 16 years of age fall under the scope of protection of Art. 187 SCC (sexual acts with children) as well as under the scope of protection of Art. 189 SCC. SCC (attacks on sexual freedom and honor). These two articles protect different legal interests: Art. 187 SCC protects the development of minors, while Art. 189 SCC. SCC protects sexual freedom.

The application of the coercion provisions requires that the victim can already form a will regarding their sexual freedom. In the case of children who are not yet able to form such a will, the offense of defilement (Art. 191 SCC) applies. A mere age-related incapacity to discern is to be assumed only with caution, and the establishment of a fixed age limit is to be avoided. The circumstances of the individual case are decisive.

In the case of children aged eight and a half to ten and a half years who are considered capable of discernment, their developmental inferiority and susceptibility to influence in the formation of their will must be taken into account. An offender from the social environment can also put a child under pressure without actively exerting coercion or threatening disadvantages, thus fulfilling the provisions on sexual…