Facts
On the night of August 22 to 23, 1970, the 21-year-old X. was in a farmhouse rented by her acquaintance Metzger, where a larger number of people had gathered, including Ferdinand Schmidli, Bruno Wanner, Oswald Valentin and Willy Stuber. After X. had withdrawn to Metzger's room around 2:30 a.m. to sleep, Schmidli, Valentin and Wanner entered the room and demanded that X. come to the adjacent room. When she did not comply with this request, the three men dragged the woman out of bed and carried her, despite her resistance, into the adjacent room, where she was thrown onto a mattress on the floor and forcibly undressed.
At 8:00 a.m., the three young men and a fourth unknown person again entered the woman's room, threw themselves on her, tore off her clothes down to her bra and sweater despite her resistance, carried her again into the adjacent room onto the mattress and held her forcibly by the arms and legs as she resisted. Thereupon, Schmidli, Wanner, Valentin and Stuber abused X., with the first two alternately repeatedly (3-4 times each) having sexual intercourse with her, Stuber performing the sexual act once, and Valentin repeatedly indecently touching the woman's genitals in between.
Considerations
The Court of Cassation concluded that the lower court had wrongly denied the element of incapacity to resist within the meaning of Art. 187 para. 2 of the Swiss Criminal Code. The victim's powers of resistance were completely paralyzed by the holding of her arms and legs and the covering of her mouth by the perpetrators, so that her resistance could in no way affect their indecent acts. Thus, the requirements for qualified rape were met.
With regard to the deprivation of liberty, the Court of Cassation…