Facts
On 10 April 2000, the Federal Supreme Court issued a judgment (ATF 126 IV 136) in a case opposing the employer ([Y.]) to the Public Prosecutor's Office of the Canton of Vaud. The employer, a Portuguese national, had hired a young woman (X., born in 1977) to care for his two children. X. was accommodated in the children's bedroom, even sharing a bed with one of them from Christmas 1993. She was subjected to extremely difficult working and living conditions: no days off, prohibition from going out alone, deprivation of money, and progressive restrictions (prohibition from watching television from January 1994, going to bed at the same time as the children). The employers did not take out health insurance for her and did not take steps to regularise her stay or work in Switzerland.
Furthermore, the employer committed repeated sexual assaults on X. between April and August 1994, including rapes, forced fellatio, physical violence, and sexual coercion under threat. The Criminal Court of the District of B. convicted [Y.] of qualified simple bodily harm, sexual coercion, rape, breach of the duty of care or education (Art. 219 SCC), and violation of the Foreign Nationals Act. He was sentenced to three years' imprisonment and expulsion from Swiss territory for ten years. The Criminal Cassation Division of the Vaud Cantonal Court partially upheld Y.'s appeal, suspending the expulsion for five years. [Y.] filed an appeal in nullity before the Federal Supreme Court, which partially upheld his appeal.
Considerations
The Federal Supreme Court examined the issue of the concurrence between Art. 219 SCC (breach of the duty of care or education) and sexual offences (Art. 189 and 190 SCC). The employer contested his conviction for breach of the duty of care or education, arguing that this offence was absorbed by the sexual offences, since the latter had already endangered the victim's physical and psychological development.
The Court recalled that Art. 219 SCC protects the physical and psychological development of minors under 18. It is a concrete endangerment offence, where it is not necessary for a harmful result to occur, but where the mere possibility of an infringement must be plausible in the specific case. The Court also emphasised that legal doctrine is divided on the issue of the concurrence between Art. 219 SCC and sexual offences. Some authors consider that Art. 219 SCC is subsidiary, while others take the view that it only applies if the unlawful conduct goes beyond the infringement of sexual integrity and endangers the victim more broadly.
In the present case, the Court considered that the sexual acts committed by the employer against the victim, although…