Facts
On March 4, 1991, the complainant L. (born October 4, 1940) lay down in bed with his daughter's son R. (born May 29, 1986), exposed his genitals to him, and masturbated. On March 15, 1991, he let the boy's pants down in the chicken coop, touched his genitals, and masturbated. Presumably on March 23, 1991, he led R. into the threshing floor, where he exposed his own genitals and let the child suck on them until ejaculation. On April 20, 1991, he let the boy's pants down in the chicken coop, exposed his genitals, and thrust them between the boy's thighs until ejaculation.
The District Court of Aarau found L. guilty of multiple sexual acts with a child pursuant to Art. 187 para. 1 SCC and sentenced him to two and a half years of penitentiary. The High Court of the Canton of Aargau dismissed the appeal and cross-appeal.
The Public Prosecutor's Office of the Canton of Aargau filed a federal nullity appeal and requested that L. be punished for multiple indecent assault under Art. 191 SCC, or alternatively for multiple sexual acts with a child pursuant to Art. 187 para. 1 SCC in ideal concurrence with multiple indecent assault under Art. 191 SCC.
Considerations
The Federal Court states that between Art. 187 and Art. 191 SCC, true concurrence (ideal concurrence) should generally be assumed if a child is abused for sexual acts, who is considered incapable of judgment within the meaning of Art. 191 SCC due to their age.
Art. 187 SCC protects the undisturbed sexual development of minors, while Art. 191 SCC protects persons who are mentally or physically unable to defend themselves against sexual assaults. Since the victim R. was 4 years and 11 months old at…