Attempted rape, expulsion and hardship clause, risk related to the "blood feud" custom

Federal Supreme Court, 03.03.2026, 6B_102/2026

Facts

A.A. was convicted in the first instance of the murder of his ex-wife's partner (B.), the attempted murder of his ex-wife, and other offenses. However, he was acquitted of the charge of attempted rape of his ex-wife. The sentence imposed was 19 years and six months of imprisonment, combined with a 12-year expulsion from Switzerland.

Upon appeal by B., the Criminal Appeals and Review Chamber of the Canton of Geneva amended the judgment. It also found A.A. guilty of attempted rape, increased the custodial sentence to 20 years, and upheld the 12-year expulsion.

A.A. filed a criminal appeal with the Federal Supreme Court, challenging only his conviction for attempted rape and the expulsion order. He requests an acquittal on that charge, a reduction in his sentence, and the cancellation of his expulsion.

Law

The Federal Supreme Court reiterates the legal principles applicable to attempted rape and expulsion.

1. Attempted rape (Art. 190 SCC and Art. 22 SCC):
   1. Objective elements: The offense of rape is committed when the perpetrator forces a person to undergo a sexual act through threats, violence, or psychological coercion.
   2. Subjective elements: The perpetrator must act intentionally, with eventual intent being sufficient. They must know or, at the very least, accept the possibility that the victim is not consenting and is undergoing the act under duress. The victim's refusal must be recognizable to the perpetrator (crying, screaming, physical resistance).
   3. Attempt: An attempt occurs as soon as the perpetrator has decided to commit the offense and has performed an act manifesting that decision, representing the final and decisive step toward the commission of the crime.
2. Expulsion (Art. 66a and 66d SCC ; Art. 3 and 8 ECHR):
   1. Mandatory expulsion: Murder and rape are offenses that result in a mandatory expulsion of 5 to 15 years for a foreign national.
   2. Hardship clause (Art. 66a para. 2 SCC): The judge may exceptionally waive expulsion if it would place the foreign national in a situation of serious personal hardship and the public interest in expulsion does not outweigh their private interest in remaining in Switzerland. The proportionality analysis takes into account integration, family situation, length of stay, and the possibility of reintegration in the country of origin.
   3. Principle of non-refoulement (Art. 66d SCC, Art. 3 ECHR): Expulsion cannot be carried out if it violates mandatory norms of international law, particularly if the person risks torture or inhuman or degrading treatment in their destination country. Such a risk must be real, personal, and concrete.

Application to the specific case

The Federal Supreme Court examines the appellant's two grievances.

1. Regarding the conviction for attempted rape:
   1. The Federal Supreme Court finds that the cantonal court's assessment of the evidence is not arbitrary. The court gave greater credibility to the statements of the victim, B.________, which were detailed, consistent, and corroborated by physical evidence (photographs of bruising on the wrists). Conversely, the appellant provided contradictory and implausible explanations.
   2. The Federal Supreme Court rejects the appellant's argument that he ceased his actions as soon as he understood the victim's lack of consent. The cantonal court correctly held that, given the context (separation, the perpetrator's obsessive behavior, the surprise of the assault), the appellant knew from the outset that his ex-wife was not consenting. He only stopped his actions in the face of the victim's determined physical and verbal resistance. The intent to commit rape was therefore established, and the commencement of execution was clearly proven.
2. Regarding the expulsion measure:
   1. The appellant claims a risk of death if he returns to Somalia due to the "blood money" (Diya) custom following the murder he committed. He maintains that the victim's clan will seek revenge.
   2. The Federal Supreme Court upholds the cantonal court's analysis: although the "blood money" custom exists, the risk to the appellant is not considered current and concrete. Financial negotiations took place between the families, and several years have passed without reprisals. The danger is therefore deemed hypothetical at the time the decision was rendered. The request for an expert report on this subject is also rejected, as it is considered late and incapable of proving a current risk.
   3. Regarding the hardship clause, the Federal Supreme Court finds that expulsion does not place the appellant in a situation of serious personal hardship. Having arrived in Switzerland as an adult (at age 28), he is poorly integrated. His ties to his children, who will be adults by the time he is released from prison, are already compromised by his own actions. His private interest in remaining in Switzerland is therefore weak.
   4. Conversely, the public interest in his expulsion is deemed manifest and overriding due to the extreme gravity of the offenses committed (murder, attempted murder, attempted rape), which demonstrate his contempt for the Swiss legal order and a risk to public safety.

Outcome

The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The conviction for attempted rape and the 12-year expulsion order are upheld. The request for legal aid is denied, and the court costs are to be borne by the appellant.

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