Sexual Assault on a Defenseless Person (Art. 191 Swiss Criminal Code)

Facts

This case involved a physiotherapist who was accused of sexually abusing one of his patients. The public prosecutor brought charges against the physiotherapist for sexual abuse under Art. 191 of the Swiss Criminal Code. The patient had been in a position during a massage where she was unable to recognize the sexual assault in time and defend herself against it.

The District Court of Zurich initially found the physiotherapist guilty of exploitation of a vulnerable situation under Art. 193 para. 1 of the Swiss Criminal Code. The High Court of the Canton of Zurich confirmed this conviction on the issue of guilt but reduced the sentence. The physiotherapist then filed a federal nullity appeal against the judgment.

Considerations

The Federal Supreme Court concluded that the physiotherapist had not committed the offense of exploitation of a vulnerable situation under Art. 193 para. 1 of the Swiss Criminal Code. A special dependence of the patient on the physiotherapist, which would have substantially restricted her decision-making freedom, could not be established.

However, the behavior of the physiotherapist fulfilled the elements of sexual abuse under Art. 191 of the Swiss Criminal Code. The…