Conviction for sexual acts with children: Dismissal of the appeal

Facts

The appellant [X.] was convicted by the High Court of the Canton of Aargau for sexual acts with children (Art. 187 para. 1 SCC) and sentenced to a fine of 210 daily rates of CHF 170.-- each. The appellant lodged an appeal with the requests to acquit him of the charge of sexual acts with children and to fully dismiss the claims of the civil party [A.] regarding damages, compensation, and reimbursement of party costs.

The lower court had established the following facts: The appellant and his wife were friends with the parents of the respondent 1. On the night of June 12 to 13, 2005, the respondent 1 spent the night at the appellant's apartment. She slept in the children's room, while the appellant's son of the same age spent the night in the parental bedroom. In the early morning hours, around 05.00, the respondent 1 woke up and noticed that the appellant, who had spent the night next to her on the extendable guest bed, had pulled down her underpants and, with sexual intent, inserted one of his fingers into her vagina or anus.

Considerations

The appellant complained of a violation of the principle "in dubio pro reo" as a rule of evidence evaluation and as a rule of burden of proof. The Federal Court stated that the principle "in dubio pro reo" as a rule of evidence evaluation means that the criminal court may not declare itself convinced of the existence of a fact unfavorable to the accused if, from an objective point of view, there are substantial and insurmountable doubts that the fact has occurred.

The Federal Court concluded that the lower court had not violated the principle "in dubio pro reo", as the statements of the respondent 1 were consistent and detailed and did not reveal any impairment of her ability to perceive. The lower court had also not violated its discretion in answering the question of whether, in the specific circumstances of the case, the appointment of an expert to assess credibility was necessary or not.

The appellant also complained of a violation of Art. 10c aVSA, as the questioning had taken place 18 days after the incident and the investigating officer who…