Facts
In this case, the accusation was of sexual abuse under Art. 191 of the Swiss Criminal Code against [A.] , [B.] and [C.] . The Public Prosecutor's Office of the Canton of Zurich brought charges, as the accused were alleged to have performed sexual acts on a 17-year-old woman ([D.] ) while she was in a comatose state and unable to resist.
The District Court of Dielsdorf acquitted the accused of the charge of sexual abuse. The High Court of the Canton of Zurich confirmed these acquittals. The Public Prosecutor's Office then filed a criminal appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court overturned the judgment of the High Court and remanded the case for a new assessment by the lower court. It concluded that the victim was defenseless within the meaning of Art. 191 of the Swiss Criminal Code at the time of the sexual acts, as she was sleeping due to alcohol and fatigue and did not notice the assaults.
Contrary to the view of the High Court, it is sufficient for the subjective element of the offense if the accused…