Federal Supreme Court, 05.09.2025, 6B_399/2024, 6B_405/2024
Facts
A. and B. engaged in two consensual sadomasochistic sexual encounters in June 2021. On December 7, 2021, during a subsequent meeting at B.'s home, A. committed violent acts (forced oral sex resulting in vomiting, hitting, hair pulling, and penetration). The court of first instance convicted A. of simple bodily harm, sexual coercion, and rape. The Fribourg Court of Appeal acquitted him, ruling that the acts were part of a consensual SM game, noting in particular their previous encounters and the fact that the complainant did not use a "safe word." The Public Prosecutor's Office and the complainant appealed.
Legal Analysis
The Federal Supreme Court reiterates that:
- Articles 189 (sexual coercion) and 190 (rape) of the Swiss Criminal Code require the absence of the victim's consent and the use of coercive means by the perpetrator (violence, psychological pressure). Example: holding the victim's head or striking them constitutes coercion;
- rape and sexual coercion require that the perpetrator acted intentionally (with awareness and intent). Example: continuing despite obvious signs of distress. A perpetrator may be convicted based on eventual intent (dolus eventualis), meaning they accepted the risk that the victim did not consent;
- under Article 123 of the Swiss Criminal Code (simple bodily harm), any significant impairment of physical integrity is punishable, unless valid consent is given. Example: bruising or persistent pain is not covered by presumed consent;
- consent must be clear, current, limited to the acts agreed upon, and revocable at any time.
Application to the case
The Federal Supreme Court finds that:
- the messages from December 7 show a desire to engage in sexual activity, but not an agreement to violent or humiliating practices. The "safe word" was never truly established or redefined that day;
- the encounters in June do not justify an assumption of automatic consent six months later. Example: having accepted slaps or strangulation in June does not constitute consent to the forced vomiting on December 7;
- the violence inflicted (coercion, induced vomiting, hitting, hair pulling) exceeded what could have been reasonably anticipated based on the consensual relations in June;
- by failing to verify the complainant's consent and continuing with violent acts, A. at the very least accepted the risk that she did not consent: therefore, intent via eventual intent (dolus eventualis) can be established.
The objective and subjective elements of all three offenses are met.
Outcome
The Federal Supreme Court grants both appeals, overturns the cantonal judgment, and finds A. guilty of:
- simple bodily injury (Art. 123 SCC),
- sexual coercion (Art. 189 SCC),
- rape (Art. 190 SCC).
The case is remanded to the cantonal court to determine the sentence, civil claims, and costs.
No court costs are charged before the Federal Supreme Court; the Canton of Fribourg shall pay the plaintiff CHF 3,000 for legal expenses.
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