Facts
The Federal Supreme Court dealt with an appeal against a judgment of the Cantonal Court of Basel-Landschaft, which had convicted [A.] of rape and sexual coercion as a co-perpetrator with [C.] to the detriment of [B.] . The facts can be summarized as follows: [A.] and [B.] initially had consensual sexual contact. Afterwards, [A.] called [C.] into the room and tried to persuade [B.] to engage in sexual acts with [C.] . When [B.] refused, [A.] left the room, in which [C.] then committed sexual acts against the will of [B.] . The Federal Supreme Court concluded that [A.] cannot be held responsible either as a co-perpetrator or as an accomplice for the sexual offenses committed by [C.] . Although his behavior could be considered morally reprehensible, as he is said to have recognized the possibility of a rape by [C.] without intervening, this cannot be criminally reproached to him, as he did not actively participate in the act nor did he have a guarantor position that would have obliged him to intervene. The Federal Supreme Court therefore quashed the judgment against [A.] and remanded the case to the lower court for re-assessment.Considerations
In its reasoning, the Federal Supreme Court states the following: 1. The lower court had convicted [A.] as a co-perpetrator of the rape and sexual coercion by [C.] . However, the Federal Supreme Court does not see a basis for this: - The Federal Supreme Court does not consider a common criminal intent between [A.] and [C.] to coerce the complainant [B.] to sexual acts, if necessary by force, as proven. - The calling in of [C.] by [A.] and the attempt to persuade [B.] to sexual acts with [C.] are indeed behaviors, but…