Facts
The complainant, [X.] , was sexually harassed by her neighbor, [Y.] , in the elevator of their shared apartment building on January 27, 2008. [Y.] approached [X.] , kissed her on the cheek and mouth, and turned her face towards him with his hands. The High Court of the Canton of Aargau found [Y.] guilty of sexual harassment and sentenced him to a fine of Fr. 600.--. The complainant requests that the judgment be overturned and [Y.] be convicted of violating Art. 187 Ziff. 1 Abs. 1 SCC.
The lower court classified [Y.] 's behavior as objectively related to sex, but not as a sexual act with a child within the meaning of Art. 187 Ziff. 1 Abs. 1 SCC, rather as sexual harassment pursuant to Art. 198 Abs. 2 SCC. The complainant challenges the lower court's legal assessment of [Y.] 's behavior and argues that the offense of sexual harassment is not a residual offense.
Considerations
The Federal Court reviews the lower court's legal assessment of [Y.] 's behavior. It finds that the lower court correctly determined that [Y.] 's behavior does not fall under the offense of sexual acts with a child within the meaning of Art. 187 Ziff. 1 Abs. 1 SCC, as it lacks the significance of the sexual act.
The Federal Court states that the significance of the sexual act must be determined on a case-by-case basis, in particular according to the age of the victim or the age difference to the perpetrator. It finds that [Y.] 's intrusions against the complainant were not capable of causing a risk to the complainant's undisturbed…