-
- Art. 3 FC
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 13 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 26 FC
- Art. 29a FC
- Art. 30 FC
- Art. 31 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 1 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123a FC
- Art. 123b FC
- Art. 130 FC
- Art. 136 FC
- Art. 164 FC
- Art. 166 FC
- Art. 170 FC
- Art. 178 FC
- Art. 189 FC
- Art. 191 FC
-
- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 97 CO
- Art. 98 CO
- Art. 99 CO
- Art. 100 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 633 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Art. 808c CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
-
- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 60 PRA
- Art. 60a PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 64 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 73 PRA
- Art. 73a PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
-
- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 4 FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 18 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 52 FADP
- Art. 54 FADP
- Art. 55 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
-
- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
-
- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 11 AMLA
- Art. 14 AMLA
- Art. 15 AMLA
- Art. 20 AMLA
- Art. 23 AMLA
- Art. 24 AMLA
- Art. 24a AMLA
- Art. 25 AMLA
- Art. 26 AMLA
- Art. 26a AMLA
- Art. 27 AMLA
- Art. 28 AMLA
- Art. 29 AMLA
- Art. 29a AMLA
- Art. 29b AMLA
- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 38 AMLA
FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. Background
- II. Protected legal interest
- III. Objective elements of the offense
- IV. Subjective elements
- V. Complaint (para. 1) and sanction
- VI. Concurrence
- Bibliography
- Materials
I. Background
A. Image-Based Sexual Abuse
1. Definition
1 According to the legislative materials, Article 197a of the SCC was created with the phenomenon of so-called “revenge porn” in mind. Originally, this term referred to a specific situation that occurs after the breakdown of a relationship: one person disseminates, without the other's consent, nude, sexting, or sex recordings that were consensually created during the relationship in order to expose the other person to ridicule and thus take revenge on them for implied misconduct. Over time, however, the term has developed into a kind of collective term that is also used to describe other, similar situations, such as when sexually explicit images are obtained through hacking, used for blackmail, or secretly recorded and distributed for voyeuristic purposes. It has also been adopted in numerous languages and is used internationally. The term is mainly used in media and political discourse; in academic debate, it is largely rejected due to its inaccuracy and problematic connotations. Both components of the term are critically questioned: the expression “revenge” is too narrow, as perpetrators often pursue other motives in practice, such as exercising power, enhancing their own social status, or financial interests. In addition, this term implies a reaction to the wrongdoing of the person concerned and thus shifts the focus to the perspective of the perpetrator rather than the harmful consequences for the victim. The term “pornography” is also inaccurate: it incorrectly describes the content disseminated in the context of this phenomenon as “pornographic,” even though this is generally not the case in the legal sense of the term. Often, the images are simply nude photographs, but their publication can also cause considerable embarrassment. Furthermore, the term pornography has moral connotations and is potentially stigmatizing. Researchers therefore propose the term “image-based sexual abuse” to describe the phenomenon. This term is broader and describes the non-consensual production, recording, or distribution of sexualized (N. 4) images or videos, including altered or artificially generated media, as well as the threat of distributing such material. If the threat is linked to a specific demand – such as the release of further recordings, the performance of sexual acts, or the payment of money – this is referred to as sextortion.
2 Although the term “revenge pornography” was questioned critically in some quarters during the legislative process, it was accepted uncritically by most of those involved or conflated with the collective term “cyberbullying,” i.e., “the systematic exposure of a person using electronic means of communication.” The use of cybermobbing or cyberbullying in cases of image-based sexual abuse is rightly criticized, as terms such as bullying or mobbing are often associated with juvenile misconduct, which carries the risk of downplaying the seriousness of the behavior. This is problematic because the misuse of sexual content affects people of all ages and can have serious consequences, including suicide among those affected (N. 7). Another criticism is that the term conflates several complex issues and, in particular, assumes a mere context of exposure or defamation, thereby pushing the sexual dimension of such assaults into the background (see N. 4). This was also evident in the political debate, in which the specifically sexualized nature of such assaults was sometimes misunderstood and they were treated as mere defamation offenses (see N. 8, 10). Although image-based sexual abuse may be part of a cyberbullying constellation in individual cases, the phenomenon is neither limited to this nor can it be conceptually qualified as a mere subcategory of it, especially since it regularly occurs outside of adolescent bullying situations and represents a specific form of sexualized assault. In addition, the term cyberbullying excludes any actions that take place without digital tools (see N. 6).
2. Phenomenon
3 International study results suggest that the phenomenon of image-based sexual abuse is gender-specific: it appears that women and LGBTQI+ individuals are particularly affected and suffer more severely from the effects. In contrast, the perpetrators are predominantly male. The fact that female victims are particularly affected is explained as a reflection of social structures in which women are stigmatized for living their sexuality openly. They are also particularly often affected by victim blaming—a reversal of perpetrator and victim in which it is not the person who distributed the recording without consent who is criticized, but the woman herself. She is then accused of being responsible for the distribution because she created a sexualized image of herself in the first place – even if this image was created without her knowledge, stolen or hacked (N. 5) and distributed without her consent. For the reasons mentioned above, such attacks are an effective means of intimidation, punishment, or control—and are therefore not only individual attacks, but also an expression of structural inequality.
4 Central to the phenomenon of image-based sexual abuse is that it involves sexual transgressions. It is therefore essential to limit the definition to sexual – or more precisely, sexualized – content, in particular depictions of nudity (especially of the genitals and female breasts) and sexual acts (for the regulation in Art. 197a SCC, see N. 16 ff.). In contrast, recordings that depict private or vulnerable moments – such as crying faces, hospital stays, or private conversations – but do not have a comparable sexualizing potential do not fall under this phenomenon. This limitation in terms of content is crucial for several reasons: On the one hand, sexualized recordings achieve a particularly wide reach on the internet, are disseminated more frequently, and are part of a commercial exploitation market. Secondly, such images have particularly serious consequences for the individuals concerned, as their publication deeply invades their privacy and at the same time violates their sexual self-determination (see N. 11). The dissemination of non-sexualized, sensitive content can also cause considerable distress, but in terms of reach and intensity of intrusion, it lags significantly behind the dissemination of sexualized images. Research therefore increasingly emphasizes that the non-consensual distribution of sexualized images should be considered a form of sexual offense whose effects are structurally comparable to those of other sexual transgressions. This assessment is supported by current studies: the effects of the dissemination of sexualized images – in contrast to the dissemination of non-sexualized content – have been extensively researched (cf. N. 7) and show clear parallels to the consequences of classic sexual assaults. The victims themselves also often perceive these acts as sexual assaults.
5 The origin of the content distributed in the context of image-based sexual abuse is diverse: some of it consists of recordings that were produced consensually in the context of a romantic relationship or sexting – either by the person concerned themselves or by their partner. Recordings that were intended exclusively for a paying audience (e.g., content shared on OnlyFans) can also be distributed without authorization (so-called content leakage; see N. 19, 21 for information on criminal liability). In addition, there are cases in which the content was obtained through hacking. According to current study findings, the most common scenario is that the distributed recordings originate from situations in which they were already created without consent and thus themselves constitute the result of an image-based sexual assault. The range of possible contexts in which this occurs is wide: victims are secretly or openly recorded without consent during consensual or non-consensual sexual acts (cf. criminal liability N. 16 f., 19 ff.). Naked people are also regularly recorded in private or public spaces with hidden or hacked cameras (spy cams or camfecting) (see N. 18, 20 on criminal liability). However, even clothed persons—especially women—can be depicted in a sexualized manner in public spaces, for example through so-called creepshots, in which the genital region, buttocks, or breasts are deliberately photographed or filmed, through downblousing, i.e., filming down a neckline, or through upskirting, i.e., photographing or filming under skirts (see N. 18, 20). In addition, artificially produced images are created and distributed, in particular so-called deepfake pornography (videos or images generated by artificial intelligence in which the faces of real people are montaged into pornographic scenes), deep nudes (images in which the clothing of the persons depicted is digitally removed using artificial intelligence) or simple photomontages in which real persons are subsequently inserted into sexualized or pornographic contexts (cf. criminal liability N. 22, 30). The examples mentioned illustrate a typical feature of the phenomenon: Everyday situations are transferred into a sexualized context, often completely detached from their original context. Even activities such as personal hygiene, going to the toilet, or sunbathing can thus become the starting point for image-based sexual abuse.
6 The distribution of sexualized images takes place in various ways, with the severity of the violation of legal interests increasing as the number of recipients increases. For example, relevant images can initially be shown to others without consent, for example via the screen of one's own device (for criminal liability, see N. 34). In addition, relevant images are distributed physically, for example by post, or digitally via chat messages, emails, or livestreams (for criminal liability, see N. 33 f.), in some cases specifically targeting the victim's personal environment. Particularly serious is publication in which the content is made accessible to a large and unmanageable audience (for criminal liability, see N. 35), for example on social media or on special online platforms. In some cases, the recordings are published in the victim's name – for example, via fake profiles – to give the impression that the victim shared the content themselves. The distribution is often accompanied by doxing—the disclosure of personal data—as well as offensive and accusatory comments.
7 Image-based sexual assaults can have serious and long-lasting effects on those affected. When introducing Article 197a of the SCC, the legislature also referred to these consequences and made statements that can be confirmed by scientific studies: Particular emphasis was placed on the fact that once disseminated, recordings can be rapidly and uncontrollably reproduced on the internet. In most cases, they cannot be (completely) deleted (using civil law tools) and thus become a permanent part of the digital identity of the person concerned – especially if additional personal data has been disclosed (doxing, see N. 6). Victims lose control over their own image and their (self-)representation to the outside world. This form of assault is not tied to a specific place or time, but has a permanent, global, and omnipresent effect. As a result of victimization, victims are often exposed to further harassment by others, which also takes place outside the online sphere (e.g., in the form of stalking, sexual harassment, or threats). The acts often also affect the social and working lives of the victims: some lose their jobs or leave them voluntarily, while others report considerable difficulties in finding new employment. Image-based sexual abuse therefore also has a behavior-controlling component: victims regularly feel compelled to take drastic measures, such as changing their name or appearance or withdrawing completely from social media. Accordingly, many victims report a turning point that they perceive as “life-destroying” with far-reaching effects on their self-image, their relationships, and their everyday lives. Almost all victims report intense negative feelings such as anger, helplessness, humiliation, shock, fear, guilt, and shame. They develop anxiety disorders, depression, post-traumatic stress disorder, and a profound loss of self-esteem. In severe cases, this can lead to self-harming behavior or suicidal tendencies. The acts also have an isolating effect, as many victims develop trust issues and feel unsafe both online and in public, causing them to avoid certain websites and places, change their behavior, and consciously restrict their freedom of movement. Victims of pornographic deepfakes report similar psychological and social effects. A particularly serious form of non-consensual distribution of sexualized recordings occurs when the images or videos depict actual sexual violence. The distribution of these recordings permanently repeats the events, perpetuates their humiliating and hurtful nature, and invites a wider audience to participate in the violation. This can take the form of comments that condone the act or contain additional insults. This causes the trauma of these sexual assaults to be relived and intensified over and over again.
B. History
8 As early as 2010 and 2016, parliamentary motions were submitted to the National Council requesting the Federal Council to examine the need for legislative action with regard to the distribution of intimate or pornographic recordings without consent. In both cases, the Federal Council referred to existing defamation offenses and civil law protection of privacy and expressly denied the need for a revision of the law. During the consultation process on the revision of sexual criminal law, which came into force on July 1, 2024, five participants explicitly called for the criminalization of the phenomenon of “revenge porn” (for a critique of the term and phenomenology, see N. 1 ff.). The Legal Affairs Committee of the Council of States took up this concern and added a new Article 197a to the draft, which would make the unauthorized distribution of non-public sexual content an offense under the SCC. Both chambers agreed in principle that new legislation was needed to address the unlawful distribution of certain non-public, intimate content. However, the specific content of the regulation was controversial: there was disagreement regarding the material scope, the systematic location in the law, and the wording of the new provision. The majority of the Council of States argued in favor of limiting the criminal provision to sexual content and systematically anchoring it in sexual criminal law. In contrast, the majority of the National Council advocated an alternative solution: it wanted to delete Art. 197a of the SCC and insert an Article 179undecies in Title III (“Offenses against honor and privacy”). This would make it a criminal offense to disseminate any content that could seriously damage a person's reputation – including compromising or embarrassing recordings that are not specifically sexual in nature. The Council of States firmly upheld Art. 197a SCC and called for the deletion of the newly proposed Art. 179undecies. Ultimately, the minority position in the National Council succeeded in winning a majority. This meant that the view prevailed that the criminal provision should be limited to sexual content and systematically assigned to sexual criminal law. Accordingly, the legislative body also decided against a provision protecting the “secret and private sphere.” In view of the legal interest of sexual self-determination (N. 11) and the particular severity of the violation, as evidenced by scientific studies (N. 7), which is essentially characterized by the sexualized dimension of the phenomenon (cf. N. 4), this legislative decision proves to be appropriate and coherent – one whose ratio legis must now be consistently implemented by case law.
9 It should be noted that Art. 197a SCC exclusively criminalizes the unauthorized distribution of sexual content without the consent of the person depicted or named. This means that a gap in protection remains, which should not be underestimated, particularly with regard to the non-consensual creation of such content. In cases of unauthorized creation of sexualized recordings, Art. 179quater SCC is also regularly applied, but this is undoubtedly not tailored to the injustice typical of image-based sexual abuse. Since the revision of sexual criminal law, Art. 198 para. 1 Var. 2 SCC also covers image-based sexual harassment and thus certain aspects of the phenomenon. Finally, Art. 179decies SCC makes it a criminal offense to use another person's identity with the intention of causing harm or gaining an advantage—which may be particularly relevant in the distribution of deepfake pornography or deepnudes.
II. Protected legal interest
10 Although the protected legal interest was never explicitly named or dogmatically defined in the legislative process for Art. 197a SCC, the political debate actually revolved around precisely this issue: The central issue of contention was whether the new offense should be located in Title III (“Offenses against honor and privacy”) or Title V (“Offenses against sexual integrity”) (N. 8). Ultimately, the debate centered on which legal interest should take precedence: Is it a matter of defamation or violation of honor or privacy – i.e., legal interests covered by Title III – or is it a matter of sexual assault? The legislature's decision to assign the provision to Title V leaves no doubt: it is not honor or privacy that is to be protected, but sexual integrity – and with it the sexual self-determination of the person concerned (see N. 11). The terms “intimacy” and “(sexual) sense of shame” used in political debates do not change this. Although these terms may be helpful in describing the subjectively perceived dimension of injustice, they are not suitable as criminal law interests:
The term “intimate sphere” originates from civil law personality rights and is often mistakenly equated in the criminal law context with the recognized legal interest of privacy. Although this may well be affected in the circumstances covered by Art. 197a SCC, it merely describes a more general dimension of personal injury, but not the specific interference with sexual self-determination that Art. 197a SCC covers through its systematic position in Title V. And even if one were to understand “privacy” as a new, independent legal interest under criminal law, its classification in Title V would argue against it being protected by Art. 197a SCC. This is because not everything that is ‘intimate’ is necessarily also “sexual.”
“(Sexual) modesty” is neither a recognized legal interest nor an interest worthy of protection under criminal law, but merely a regularly observable emotional reaction to the loss of control over one's own sexuality or to a violation of sexual self-determination.
11 Article 197a of the SCC protects the sexual self-determination of the person depicted or named. This legal interest is traditionally physical in nature and encompasses, on the one hand, the positive freedom to engage in sexual acts according to one's own wishes and, on the other hand, the negative freedom not to be involved in sexual interactions against one's will. However, recent developments in criminal law increasingly recognize that non-physical forms of sexualization—such as those that occur in particular in image-based sexual abuse—can also constitute interference with sexual self-determination and therefore deserve protection under criminal law. This is nothing new in the Swiss understanding of legal interests: several sexual offenses already protect sexual self-determination from non-physical interference. Within the scope of application of Art. 197a SCC, the legal interest is specified in the protection of the right to dispose of sexualized representations. The person concerned should be able to decide for themselves whether, in what form, and to whom they disclose sexual content about themselves. Sexual self-determination thus also includes the right to decide on the distribution or public disclosure of sexual content. This includes, in particular, details of one's own sex life, recordings thereof, and images of intimate body parts (genitals, buttocks, female breasts). The legislative decision to base Art. 197a SCC on a consent solution underscores the central importance of the legal interest: In contrast to physical sexual offenses (Articles 189 and 190 of the SCC), where the absence of objection is sufficient (objection solution), Article 197a of the SCC requires express, informed consent (see N. 36 f.).
III. Objective elements of the offense
12 The objective elements of the offense are fulfilled by anyone who (N. 13 f.) forwards or publishes (N. 33 ff.) an object of the offense (N. 15 ff.) without the consent of the person depicted (N. 36 f.).
A. Group of persons
13 Art. 197a SCC is a general offense. In principle, it is irrelevant how the perpetrator came into possession of the content. Even if they received it in a harassing manner from another person – for example, a so-called “dick pic” – they may be liable to prosecution if they distribute the content to third parties without the consent of the person depicted or named (see N. 36).
14 In the case of unauthorized forwarding of an object of the offense under para. 1 (N. 33 f.), a chain of distribution may form, or the content may be repeatedly published without authorization by different persons under para. 2 (N. 35). This raises the question of who else can be considered a perpetrator and where criminal responsibility ends. Legal scholars rightly argue that any person who forwards an object of the offense without the consent of the person concerned and acts intentionally (see N. 38) should be classified as an independent perpetrator. This also applies in principle within the scope of the qualifying elements under para. 2. The elements of the offense therefore remain in place even if content that was not originally public (N. 19) has already been published once. This view is essential in order to maintain the protective effect of the norm: otherwise, content that has already been published could be disseminated without restriction. However, it must be required that the retransmission or republication reaches a potentially new target group and that the perpetrator is aware of this. Anyone who forwards an object of the offense within a circle of friends in which it is already circulating, or publishes it on a website where it has already been accessed frequently, does not qualify as a perpetrator. However, if the content is forwarded to people who are not yet familiar with it, or if it is published in a way that reaches a larger new group of people – for example, by uploading it to another website – the person redistributing the content may be considered an independent perpetrator.
B. Object of the offense
15 The object of the offense is sexual content (N. 16 ff.) that is not public (N. 19 ff.), is placed on a specific medium (N. 26 ff.), and on which the person concerned is recognizable (N. 23 ff.).
1. Sexual content
16 The element of sexual content is a central difficulty of Art. 197a SCC and was also the element that raised the most concerns during the legislative process. It was generally agreed that the term should be understood more broadly than that of pornography and should encompass all content that has a sexual reference or caractère sexuel. In legal scholarship, the criteria for the definition of pornography under Art. 197 SCC are sometimes used to define the term. However, such an approach—for example, focusing on the sexually provocative effect on viewers—misses the purpose of the norm, which is to protect the sexual self-determination of the person depicted, and must therefore be rejected. The provocative effect of the content on others is irrelevant to the victim whose sexual content is being distributed without authorization. Although every pornographic depiction is sexual content according to Art. 197a of the SCC, not all sexual content is pornography within the meaning of Art. 197 of the SCC. Sexual content requires a separate definition based on the ratio legis. The materials cite two examples of sexual content: sexual acts (N. 17) and (partial) nudity (N. 18).
17 The fact that depictions of sexual acts are covered by the offense is evident from the legislative materials and is also unanimously accepted in legal doctrine. Whenever a sexual act is present, its depiction or description is sufficient to assume sexual content – no special emphasis on the genital area is required. According to the legislative intent, the interpretation of the term “sexual act” should be based on previous Federal Supreme Court case law. Accordingly, a sexual act is deemed to have taken place if a behavior has a clearly recognizable sexual reference based on its outward appearance and is considered significant in terms of the protected legal interest – in this context, with regard to sexual self-determination in relation to the sexual representation of one's own body (N. 11). The criterion of significance ensures that more serious sexual offenses, which are classified as crimes or misdemeanors, are clearly distinguished from less serious offenses – in this case, verbal or image-based sexual harassment under Art. 198 para. 1 Var. 2 SCC. The requirement of an outwardly unambiguous sexual reference is particularly problematic. By basing the definition of “sexual” on a sexual reference, the definition remains circular in terms of content; there is no narrower conceptual clarification. This is understandable insofar as sexuality is a complex, individually diverse, and culturally influenced phenomenon. The assumption of a supposedly “objective” clarity fails to recognize that such assessments are ultimately subject to social and time-bound values – and are therefore always influenced by the individual ideas of the person making the judgment. The Federal Supreme Court attempts to counter this with case-based concretizations. Sexual intercourse, anal intercourse, and oral intercourse are considered clearly sexual. Other behaviors involving touching primary or secondary sexual characteristics or inserting objects into body orifices, on the other hand, require careful differentiation, as they can also occur in a nursing or medical context. However, the case law developed in this regard is only of limited relevance within the scope of application of Art. 197a SCC for two reasons: First, depictions of sexual acts only cover the upper end of the spectrum of offenses; visual content showing (partial) nudity is often sufficient (N. 18). Secondly, the focus of the assessment is not on a violation of sexual integrity by the act itself, but on the endangerment of the freedom of choice of the person concerned with regard to their sexual self-expression.
18 According to the legislative intent, depictions of (partial) nudity are also generally considered sexual content. However, mere descriptions are unlikely to suffice in this context; a visual representation is probably required. In the opinion of the Federal Council, in the case of (partial) nudity, it is even necessary that “a sexual reference is additionally established, for example through body posture or presentation.” In legal doctrine, it remains largely unclear whether this requirement should apply. It is merely stated that (partially) exposed primary and secondary sexual characteristics – more specifically: genitals, buttocks, and female breasts – are covered, provided that a sexual reference can be established. However, it is not specified when this applies. A differentiation according to the degree of exposure seems appropriate:
In the case of partial exposure – the example given in the legislative materials is an “image showing a woman with an oversized, accentuated neckline” – the Federal Council's criterion can be used as a distinguishing feature. The decisive factor is the composition of the image: only when the camera angle, posture, or sexually suggestive clothing clearly draws attention to the genitals, buttocks, or female breasts does the photograph take on a sexual character. It is irrelevant whether this focus – for example, in the context of a self-portrait – was chosen by the person depicted or determined against their will by a third party, as is the case with creepshots, downblousing, or upskirting (see N. 5). The Federal Council's requirement to contextualize nudity appears appropriate here and compatible with the protective purpose of Art. 197a of the SCC.
In the case of complete exposure of genitals, anus, or female nipples, there is much to suggest that even a seemingly neutral depiction is sufficient to qualify as sexual content – even without a particular focus on the relevant body parts. These are areas of the body to which society attributes sexual significance, so that their unauthorized depiction in a state of exposure appears, regardless of the specific context, to be an act of sexualization and potentially a violation of sexual self-determination (see N. 4). If the other elements of the offense are also fulfilled—in particular the requirement of non-publicity (see N. 19 f.)—the unwanted exposure of these body parts, regardless of the specific manner of depiction, may already constitute a violation of legal rights. This is exemplified by voyeuristic recordings in changing rooms, solariums, or saunas, where the nudity of the persons concerned is exploited for sexual consumption by third parties. A restrictive interpretation, which would additionally require a specific focus on the exposed body parts, would mean that such recordings without focusing elements would not be covered – despite their clearly intrusive nature and their obvious potential to violate sexual self-determination if distributed without authorization. Such a view would appear neither appropriate nor compatible with the protective purpose of Art. 197a SCC.
2. Not public
19 According to Art. 197a SCC, the sexual content must be “not public,” which, according to the legislative intent, applies in particular if the content “was created for purely private use according to the will of the person recognizable in it.” From this, it could be inferred that the victim must at least have consented to the creation of the material or been aware of it. This cannot be the intention, especially since the materials recognize that the punishable phenomenon also covers the dissemination of content created without consent. Scheidegger's proposed interpretation therefore seems more convincing, according to which the decisive factor is whether the person concerned did not attribute any public purpose to the sexual content, i.e., did not want to make it “accessible to a potentially indeterminable group of recipients.” According to this view, in case of doubt, it should be assumed that sexual content is “not public.”
20 In the case of non-consensual content, such as a filmed rape or voyeuristic recordings, there is by definition always a lack of public purpose on the part of the person depicted. In view of the purpose of the norm, it should in principle be irrelevant whether the relevant facts took place in public or not. During the legislative process, it was explicitly pointed out that Art. 197a SCC could go beyond the scope of Art. 179quater SCC, which in principle does not offer any protection in public. Since Art. 197a SCC protects sexual self-determination rather than privacy or the private sphere, it must be assessed according to different criteria than Art. 179quater SCC. Anyone who appears (partially) naked in a (semi-)public place—such as in a changing room, on a beach, or in a toilet—should be able to expect that no recordings of this will be distributed, despite the local circumstances, in view of the protective purpose of Art. 197a of the SCC. The protection of sexual self-determination does not end at the threshold of the public sphere, as long as there has been no conscious or implied disclosure to an indeterminable audience. This can only be assumed in exceptional cases, for example, when “flashing” during a public soccer game or deliberately exposing one's breasts in front of the camera during a public concert.
21 The assessment is more difficult in the case of consensually created (and distributed) content. In our opinion, such cases require a context-dependent overall assessment that takes into account, for example, the size and anonymity of the target audience and existing barriers to access between the content and the general public. Technical barriers such as paywalls, password protection, or anti-screenshot functions can serve as indications of private use. The requirements should not be too high; even poor protection against the redistribution of one's own content is an indication of private intent. The use of platforms such as OnlyFans (N. 5) therefore does not constitute unrestricted consent to further distribution, but should be understood as targeted disclosure to a limited group of users. The actual public sphere only begins beyond this sphere protected by access barriers and terms of use—for example, by sending images to a large group of random people or sharing content on a public social network.
22 There is debate as to whether artificially produced sexual content – in particular pornographic deepfakes or deepnudes (N. 5) – also falls under the category of “non-public” content within the meaning of Art. 197a SCC if it was generated from recordings that were originally publicly accessible. A formulation in the legislative materials, according to which the victim is “depicted,” “named,” or “targeted” by the sexual content, suggests that artificially manipulated representations should also be covered. In addition, the wording of the law, which explicitly mentions “images” in addition to “recordings,” suggests a deliberate inclusion of artificially generated content. It is true that the source images for deepfake pornography regularly come from publicly accessible sources, such as social networks or professional websites. However, in view of the protective purpose, it is not the public nature of the original image material that should be decisive, but rather the lack of public purpose of the final product with sexual content generated from it. Such artificial products are independent, usually non-consensual creations whose sexual content clearly contradicts the recognizable will of the person concerned. The person concerned had no reason to assume that the image showing them would be transferred to a sexualized context and misused accordingly. For this reason, it seems appropriate to classify deepfake pornography and deepnudes as “non-public” within the meaning of Art. 197a SCC.
3. Recognizability
23 According to the wording of the law, the injured party must be “recognizable” in the object of the offense (Art. 197a para. 1 SCC). In the literature, this term is often equated with “identifiable,” from which it is concluded that criminal liability only exists if third parties can identify the specific victim on the basis of the sexual content. Pixelated or otherwise anonymized representations are therefore not considered to constitute an offense. However, this equation of ‘recognizable’ and “identifiable” must be critically questioned. “Recognizable” and “identifiable” are not synonyms: while identifiability requires that the person concerned can be determined by third parties, recognizability only requires that the person is perceptible as such in the object of the offense – for example, through a visible body or voice – even if no conclusions can be drawn about their specific identity. There are indications that the legislators had a narrower definition of identifiability in mind: the French version uses the term “identifiable,” and statements by the Federal Council also point to a more restrictive understanding of the term. In contrast, the Italian version uses ‘riconoscibile’ – a term that corresponds more closely to the German “erkennbar” (recognizable). However, the systematic and teleological interpretation is decisive: in most of the cases mentioned in Art. 197a para. 1 SCC, it is not usually possible to clearly identify the person concerned, but it is possible to perceive them as a representation of a real, not merely fictional, person. A large proportion of punishable cases would be excluded if criminal liability were made dependent on the victim being identifiable by third parties on the basis of the content. In the case of images (N. 28), for example, identifiability is generally excluded if only the body is visible and not the face or other individualizing features. Examples include sexting images of individual body parts (e.g., breasts, penis), recordings of sexual acts in which only the body but not the face or other individual characteristics are visible, upskirting recordings, or spycam videos from toilet bowls. A strict identifiability criterion would exclude such essential case groups and would run counter to the legislative intention. Recognizability therefore does not require identifiability, but only the perceptibility of a real person. The extent to which a plausible attribution to the person concerned is required beyond this is determined by the respective variants of the offense (for forwarding according to para. 1, see N. 24, for publication according to para. 2, see N. 25).
24 Forwarding (N. 33 f.) pursuant to Art. 197a para. 1 SCC is an offense subject to private prosecution (N. 39) . Criminal law protection therefore only applies if the person concerned recognizes themselves in the object of the offense and files a criminal complaint. In this case, it is sufficient if the attribution of the sexual content to the specific person concerned appears plausible based on the overall circumstances of the distribution—whether through the visible face of the victim, an accompanying text that names the victim, or through references from the social environment. This also applies in principle if the person concerned is falsely associated with sexual content that actually relates to another person – a scenario that has been expressly mentioned by the legislative authority. Examples include deepfake pornography or images that have been labeled with the name of another person. However, this is conditional on the false attribution appearing credible to outsiders. This is because the effect on the victim can be equally distressing regardless of the actual identity of the person depicted, as long as third parties assume that it is the person concerned (see N. 30). The identity of the person depicted therefore does not have to be established with certainty – especially since this is often not possible in practice. If, on the other hand, the attribution is obviously incorrect—for example, because the person depicted is clearly someone else or it is clearly recognizable as a fake—criminal liability under Art. 198 para. 1 var. 2 SCC (verbal or image-based sexual harassment) should be examined instead.
25 Publishing (N. 35) pursuant to Art. 197a para. 2 SCC is an offense prosecuted ex officio (N. 40). Accordingly, it should also be sufficient for authorities to be made aware of the publication by third parties. If it can be proven or is obvious that the content was published without the consent of the person depicted or named, the elements of the offense may also be fulfilled even if the person concerned never finds out about it. However, in any case, a plausible attribution to a real person who is not necessarily identifiable is still required, even if their identity is not known. The publication of clearly recognizable forgeries, on the other hand, does not constitute an offense within the meaning of Art. 197a SCC.
4. Media
26 The possible media for sexual content mentioned in Art. 197a SCC are based on the list in Art. 197 SCC (pornography) and include, in particular, writings, sound or image recordings, illustrations, objects, and performances. Insofar as there is no deviating protection with regard to the legal interest, the case law and literature developed in relation to Art. 197 SCC can generally be relied upon. Although the list is not exhaustive, it should cover most of the media relevant in practice. It should be noted that sexual content can also be embodied in several types of media at the same time – for example, in an image recording (N. 28) of a written chat (N. 27). Both physical and digital objects of the offense are covered. The decisive factor is always that the sexual content can plausibly be attributed to a real person (cf. N. 24 f.): While forwarding under para. 1 requires credible attribution to the specific person concerned, publication under para. 2 requires only plausible attribution to a real person who is not necessarily identifiable. In the latter case, it must also be clear from the circumstances that the person targeted did not consent to the publication (cf. N. 25).
27 The law first mentions non-public writings of a sexual nature. This category clearly departs from the image-based context and, in my opinion, should be interpreted restrictively. A broad interpretation could lead to rumors about a person's sex life that have already been communicated in writing – for example, in a chat – being considered criminal offenses. However, such an extension is not in line with the legislative intention. Therefore, only written content that was either written by the victim themselves or that credibly appears to have been written by the victim themselves can be considered as objects of the offense (see N. 24 f.). Milder forms of written references to a person's sexuality may be subsumed under Art. 198 para. 1 var. 2 SCC (verbal sexual harassment). A typical example of the application of Art. 197a SCC is the dissemination of genuine or fake sexting chat logs between the victim and a third party.
28 The core of the provision is image recordings of the victim. This refers to visual recordings of real events in real time, in particular photos and videos, which are produced and stored using an image recording device. The latter regularly also include an audio track, which is why they can also be considered sound recordings (N. 29). For criminal liability under para. 1, it is not necessary for the person concerned to be identifiable to third parties. It is sufficient if they recognize themselves and appear credible as the addressee of the sexual content depicted. Recognizability can result either from the image itself—for example, through the visible depiction of the person concerned—or from the manner of dissemination, in particular if accompanying information establishes a credible link to the person concerned (see N. 24). In the case of publications pursuant to para. 2, on the other hand, it is sufficient if the circumstances indicate that the images were obviously published without the consent of the person depicted (see N. 25). This is evident, for example, in the publication of voyeuristic recordings from a changing room or toilet in a well-known publicly accessible place or in the publication of OnlyFans recordings originally intended only for a closed user group.
29 Audio recordings are also covered as possible carriers of sexual content. These include, in particular, acoustic recordings of sexual noises (e.g., moaning) or conversations with sexual content (e.g., phone sex) between the victim and a third party. This only covers auditory representations of sexual acts and audio recordings of their verbal description. The recognizability of the victim (N. 23 ff.) results here in particular from a voice that is acoustically similar to that of the victim or from an otherwise credible attribution to the person concerned, for example by mentioning their name or the circumstances of the distribution.
30 The form of representation referred to in Art. 197a SCC as “images” makes it clear that artificially generated content can also be covered by the offense. This applies in particular to pornographic deepfakes or deepnudes that depict fictional events. Some legal literature argues that a systematic interpretation argues against the inclusion of such representations, since Article 197a SCC—unlike Article 197 SCC—does not distinguish between the reproduction of “actual” and “non-actual” acts. However, this argument is not convincing. This is because the two provisions pursue different protective objectives: the prohibition of hard pornography in para. 197(4) and (5) SCC serves, in the case of real depictions, in particular to protect the minors depicted, who may be specifically endangered by the production of the content, to prevent market structures from developing, and to provide general protection against the “corrupting” effect of the content. The latter is based on the assumption that hardcore pornography increases the viewer's willingness to imitate the events depicted. In the case of fictional depictions – such as drawings or animations – the protection of the person depicted does not apply due to the absence of real participants; the protection of persons actually involved is not pursued. Art. 197a of the SCC, on the other hand, takes a completely different approach: it protects the sexual self-determination of the person depicted, i.e., the specific person whose image is used in a sexual context without their consent. In view of the effects of the unauthorized distribution of deepfake pornography, which are comparable to those of real recordings (see N. 7), and the empirically proven difficulty of the Swiss population in reliably distinguishing deepfakes from real recordings, it would not be objectively justifiable to limit the protective effect to real images. The term “images” was probably created specifically for such artificially generated content (see N. 22). Any interpretation to the contrary would contradict both the wording and the purpose of the provision. In order for the recognizability criterion (N. 23 ff.) to be met, an objectively plausible and outwardly credible attribution to a real person is sufficient; identifiability is not required. For forwarding pursuant to para. 1, it is decisive that the person concerned recognizes themselves and appears credible as the addressee of the sexual content (N. 24). In the case of publication under para. 2, on the other hand, it is sufficient if the circumstances indicate that the depiction was obviously published without the consent of the real person depicted, who does not necessarily have to be specifically identifiable (N. 25). For the attribution to be credible, the forgery must be very realistic. This is particularly conceivable in the case of pornographic deepfakes or deepnudes, but can also be the case with very realistic sexualized photomontages. If, on the other hand, there is no credible attribution to the outside world—for example, in the case of obviously fake or recognizably manipulated images—Art. 198 SCC must be examined instead (cf. N. 24).
31 Less relevant in practice, but expressly mentioned in the law, are objects that depict sexual content. This refers in particular to objects with sexual connotations that can be associated with the victim – such as a collection of sex toys or fetish objects. In this context, too, a credible attribution to the victim is required (cf. N. 23 ff.).
32 The category of performances includes live performances of sexual acts or (partial) nudity. Classic examples are striptease or live sex shows. Livestreams in which sexual content is transmitted in real time are particularly relevant to the scope of application of Art. 197a SCC. In the absence of storage, these are not image recordings in the strict sense, but they do fulfill the concept of “presentation.” With regard to the recognizability of the victim, the same requirements apply in principle as for image recordings (see N. 28); however, perception and thus plausible attribution (N. 24 f.) take place in real time in this case.
C. Criminal act
1. Forwarding (para. 1)
33 An offense under Art. 197a para. 1 SCC is committed by anyone who forwards an object of the offense to at least one third party without the consent of the recognizable person (N. 23 ff.). However, the act does not constitute an offense under Art. 197a SCC if the content is sent exclusively to the person depicted or described. The term “forward” as used in the German text of the law is linguistically unfortunate. It could give the incorrect impression that only content that the perpetrator has previously received from another person (e.g., directly from the victim) is covered. However, such a restriction does not correspond to the legislative intention. Content created by the perpetrator themselves in which the recognizable victim is depicted or described should also be covered. The French and Italian language versions (“transmet” and “trasmette”) are also not ideal, but they more accurately reflect the legislative intent: This refers to any form of visual or acoustic disclosure of sexual content to third parties, regardless of whether this is done physically (e.g., through printouts or data carriers) or digitally (e.g., via messenger services, social networks, livestreams, or cloud storage). Forwarding is completed when the act of transmission is finished. This also applies if the addressee was already in possession of the content in question (see N. 34). It is not necessary for the third party to actually receive or take note of the content. Repeated forwarding as part of a chain distribution may also constitute an offense (see N. 14).
34 There is controversy in the literature as to whether the mere display of sexual content – without transfer of control – also constitutes “forwarding.” This refers, for example, to livestreams, self-deleting messages, or allowing someone to view a recording on one's own device. As Scheidegger correctly points out, this question must be answered in the affirmative in view of the wording and systematics of the norm. Art. 197a SCC expressly also covers presentations (N. 32) in which it is conceptually impossible for a change of ownership or control of the image or audio material shown to take place. It follows logically that even the mere display of content constitutes a possible criminal act within the meaning of Art. 197a para. 1 SCC.
2. Publication (para. 2)
35 Art. 197a para. 2 SCC provides for a qualification if the criminal act consists in publishing the object of the offense, i.e., in particular, if it is “made accessible to an indefinite number of persons, for example via the Internet.” Difficulties in defining the boundaries arise in particular where content is made accessible to a larger, but still not unlimited, group of people, as “new technologies have given rise to a multitude of ‘semi-public spheres’.” The boundaries between non-public and public disclosure have become blurred, making it difficult to formulate a conclusive definition of the term “publish.” Some legal scholars argue that sharing in a group chat with 30 people could already be considered publication within the meaning of the provision. Others, however, suggest focusing more on the protective purpose of the norm. According to this view, the criminal classification should depend on how large and arbitrary the group of recipients is – because the larger, more anonymous, and more uncontrollable this group is, the more serious the violation of legal rights is for the person concerned (see also N. 6). Systematically, it also seems appropriate to use the criteria that are also used to define the element of “not public” in the case of content created and distributed by mutual agreement (see N. 19, 21). According to this, the perpetrator must pursue a public purpose when distributing the (originally non-public) content. Decisive factors include, in particular, the number of recipients, their degree of familiarity or anonymity to the perpetrator, and the presence or absence of (technical) access barriers. Returning to the example of a group chat with 30 participants, its assessment is therefore highly context-dependent: If it is a closed WhatsApp group with people who are personally known to each other, publication is generally unlikely to be considered public. The case is different if it is a Telegram chat that anyone can join without access restrictions – in this case, it can be assumed to be a potentially public space. A mere abstract risk that content that was not originally public will be disseminated in an uncontrolled manner – for example, because someone could take a screenshot of the content – is not sufficient for qualification. However, the qualified act is already complete when the perpetrator creates the concrete possibility that the content can be accessed publicly – regardless of whether it was actually accessed. Multiple publication of the same object of the offense, for example through a second publication on another platform, may also constitute an offense (see N. 14).
D. Lack of consent
36 The central element of Art. 197a SCC is the lack of consent to the specific act of dissemination. Unlike physical offenses against sexual self-determination under Art. 189 f. SCC, it is not a matter of whether the person concerned has expressed a contrary will (objection solution), but whether express or at least implied consent to the disclosure of the content has been given (consent solution). Consent must always relate to the specific act of distribution. The fact that a person has consented to a recording or voluntarily transmitted it to a specific person or group of persons is not sufficient to infer consent to further distribution. This applies even if the initial transmission was intrusive or harassing, such as in the case of unsolicited dick pics. Consent must always be given in context. Persons who receive sexual content by mutual agreement and mistakenly assume that this also “allows” them to forward it to third parties are not subject to a factual error, but to a mistake of law under Art. 21 SCC.
37 In accordance with part of the doctrine, “consent” within the meaning of Art. 197a SCC is to be understood as consent that requires capacity of judgment, voluntariness, and a minimum level of information. Consent obtained under duress, through deception, or by exploiting a relationship of dependency is therefore invalid. Subsequent consent cannot remedy the wrongfulness of the distribution that has already taken place. Conversely, the revocation of previously given consent must be taken into account if it was known to the person distributing the material at the time of distribution. If several persons are depicted or named in non-public sexual content, forwarding or publishing is only lawful if all recognizable persons have effectively consented to the specific distribution.
IV. Subjective elements
38 Intent is required to fulfill the subjective elements of Art. 197a SCC, whereby conditional intent is sufficient. The intent must relate in particular to the fact that the victim has not consented to the specific act of distribution. In the case of the qualifying element of publication (para. 2), the perpetrator must at least accept that the content will be accessible to an indefinite or at least significant number of persons, or “consciously relinquish control over the sphere of influence of the content.” A specific motive such as revenge, enrichment, or defamation is not required, but may be taken into account when determining the sentence.
V. Complaint (para. 1) and sanction
39 The basic offense of forwarding under Art. 197a para. 1 SCC is a complaint offense. The time limit for filing a complaint begins on the day on which the person entitled to file a complaint becomes aware of the perpetrator (Art. 31 SCC). This is a misdemeanor (Art. 10 para. 2 SCC) punishable by imprisonment for up to one year or a fine.
40 The qualifying offense of publication under Art. 197a para. 2 SCC, on the other hand, constitutes an offense prosecuted ex officio. This is also a misdemeanor under Art. 10 para. 2 SCC, but with an increased penalty of imprisonment for up to three years or a fine.
VI. Concurrence
41 In its report, the Legal Affairs Committee of the Council of States did refer to possible conflicts, but only in a brief and imprecise manner and without reference to the legal interests protected in each case. After listing various offenses that could also apply in relevant circumstances, it summarily stated: “In such cases, the more specific offenses take precedence and consume the wrongfulness of the act. They also usually provide for a higher penalty.” This statement must be viewed critically for several reasons: First, offenses under other titles do not constitute lex specialis in relation to Art. 197a SCC, as they protect other legal interests: While Art. 197a SCC aims to protect the sexual self-determination of the person depicted (N. 11), offenses against honor or property, for example, cover other dimensions of wrongdoing. Offenses with different protective purposes are fundamentally in genuine competition with each other, provided that none of them comprehensively covers the entire wrongdoing. Sexual self-determination in the sense of the right to dispose of one's own sexual content is not already covered by the legal interests of other titles. Secondly, a higher penalty alone does not constitute grounds for assuming genuine competition or consumption. As long as different legal interests are affected, no conclusion can be drawn from the severity of the penalty about the extent of the wrongdoing or its complete coverage. Against the background of the legislative history of Art. 197a SCC, which aims to independently sanction a specific wrongdoing – namely the violation of sexual self-determination through the dissemination of sexual content – the blanket statement by the Legal Commission proves to be untenable. A differentiated analysis of the conceivable competitive relationships paints a different picture:
42 If recordings are obtained prior to their distribution through offenses against property (in particular Art. 139 SCC and Art. 143 SCC) or if sexual content is used to extort money (Art. 156 SCC) and this is then distributed, genuine competition with Art. 197a SCC can be assumed due to the different legal interests protected.
43 In addition to Art. 197a SCC, there will regularly – although not necessarily – be offenses against honor and privacy, i.e., defamation offenses (Art. 173 ff. SCC), unauthorized interception or recording offenses (Art. 179bis ff. SCC) or identity theft (Art. 179decies SCC). Since these norms protect different legal interests, Art. 197a SCC is in genuine competition with all offenses under this title. The violation of sexual self-determination constitutes a separate wrong that is not covered by the aforementioned provisions.
44 Even offenses against freedom, such as those typically committed in connection with sextortion (N. 1) – in particular threats (Art. 180 SCC) or coercion (Art. 181 SCC) – are not punishable predicate offenses in relation to Art. 197a SCC if they occur before the images are distributed. If the image material is published after such a threat or if certain actions are demanded in exchange for its deletion, this constitutes a separate violation of sexual self-determination. In these cases, Art. 197a SCC is in genuine competition with the offenses against freedom. The freedom-restricting component intensifies the overall injustice, but does not absorb it.
45 If the distributed content constitutes pornography within the meaning of Art. 197 SCC, there is a conflict between Art. 197a and Art. 197 SCC. Since all variants of Art. 197 SCC pursue a different direction of protection (cf. N. 30), the two offenses are in genuine competition with each other. If young people share their own pornographic content among themselves, the consent or lack thereof of those young people who are capable of judgment within the meaning of Art. 197a SCC may be taken into account. Even if adolescents capable of judgment consent to the distribution and thus criminal liability under Art. 197a SCC does not apply, criminal liability under Art. 197 para. 4 SCC may still exist.
Bibliography
Ajder Henry/Patrini Giorgio/Cavalli Francesco/Cullen Laurence, Deeptrace, The State of Deepfakes: Landscape, Threats, and Impact, Amsterdam 2019.
Alisobhani Nassim, Female Toplessness: Gender Equality’s Next Frontier, UC Irvine Law Review 8 (2018) II, S. 299–329.
Balsam Rosemary H., Sexuality and Shame, Journal of the American Psychoanalytical Association 57 (2009) III, S. 723–739.
Bloom Sarah, No Vengeance for ‹Revenge Porn› Victims: Unraveling Why this Latest Female-Centric, Intimate-Partner Offense is Still Legal, and Why We Should Criminalize It, Fordham Urban Law Journal 41 (2014) I, S. 233–289.
Burghardt Boris/Schmidt Anja/Steinl Leonie, Der strafrechtliche Schutz der sexuellen Selbstbestimmung vor nicht-körperlichen Beeinträchtigungen, JuristenZeitung 77 (2022), S. 502–511.
Cancio Meliá Manuel, Patterns of Criminalization of Intimate Image Abuse, Continental Approaches and Foundations, in: Caletti Gian Marco/Summerer Kolis (Hrsg.), Criminalizing Intimate Image Abuse, A Comparative Perspective, Oxford 2024, S. 193–217.
Chan Ryan, Creepshots – A Persistent Difficulty in the Australian Privacy Landscape, University of Tasmania Law Review 39 (2020) II, S. 83–98.
Chesney Bobby/Citron Danielle, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, California Law Review 107 (2019) VI, S. 1753–1820.
Citron Danielle Keats, Sexual Privacy, The Yale Law Journal 128 (2019) VII, S. 1870–1960.
Citron Danielle Keats/Franks Mary Anne, Criminalizing Revenge Porn, Wake Forest Law Review 49 (2014) I, S. 345–391.
Crofts Thomas, Refining the Contours of Intimate Image Abuse Offences, in: Caletti Gian Marco/Summerer Kolis (Hrsg.), Criminalizing Intimate Image Abuse, A Comparative Perspective, Oxford 2024, S. 121–140.
Cyber Civil Rights Initiative, End Revenge Porn, A Campaign of the Cyber Civil Rights Initiative, Inc., Revenge Porn Statistics, Coral Gables 2014, https://www.cybercivilrights.org/wp-content/uploads/2014/12/RPStatistics.pdf, besucht am 20.6.2025.
DeKeseredy Walter S./Schwartz Martin D., Thinking Sociologically About Image-Based Sexual Abuse: The Contribution of Male Peer Support Theory, Sexualization, Media, & Society 2 (2016) IV, S. 1–8.
Dodge Alexa, Punishing «Revenge Porn»: Legal Interpretations of and Responses to Non-Consensual Intimate Image Distribution in Canada, Diss. Ottawa 2019 (zit. Diss.).
Dodge Alexa, Digitizing rape culture: Online sexual violence and the power of the digital photograph, Crime Media Culture 12 (2016) I, S. 65–82 (zit. CMC).
Donatsch Andreas/Godenzi Gunhild/Tag Brigitte, Strafrecht I, Verbrechenslehre, 10. Aufl., Zürich et al. 2022.
Donatsch Andreas/Jean-Richard-dit-Bressel Marc/Graf Damian K, Strafrecht III, Delikte gegen den Einzelnen, 12. Aufl., Zürich et al. 2025.
Dunn Suzie, Legal Definitions of Intimate Images in the Age of Sexual Deepfakes and Generative AI, McGill Law Journal 69 (2024) IV, S. 395–416.
Eaton Asia A./Jacobs Holly/Ruvalcaba Yanet, Cyber Civil Rights Initiative, 2017 Nationwide Online Study of Nonconsensual Porn Victimization and Perpetration, A Summary Report, Miami 2017.
Fairbairn Jordan/Bivens Rena/Dawson Myrna, Sexual violence and social media: Building a framework for prevention, Technical Report, Ottawa 2013.
Flynn Asher/Cama Elena/Powell Anastasia/Scott Adrian J., Victim-blaming and image-based sexual abuse, Journal of Criminology 56 (2023) I, S. 7–25.
Franklin Zak, Justice for Revenge Porn Victims: Legal Theories to Overcome Claims of Civil Immunity by Operators of Revenge Porn Websites, California Law Review 102 (2014) V, S. 1303–1335.
Franks Mary Anne, The Crime of «Revenge Porn», in: Alexander Larry/Kessler Ferzan Kimberly (Hrsg.), The Palgrave Handbook of Applied Ethics and the Criminal Law, Cham 2019, S. 661–692 (zit. Handbook).
Franks Mary Anne, Redefining «Revenge Porn» Reform: A View From the Front Lines, Florida Law Review 69 (2017) V, S. 1251–1337 (zit. FLR).
Gärtner Kathrin, Sexualität, Sexpositivität und Scham, Journal für Psychologie 32 (2024) I, S. 95–116.
Godenzi Gunhild, Kommentierung zu Art. 197a StGB, in: Wohlers Wolfgang/Godenzi Gunhild/Schlegel Stephan (Hrsg.), Schweizerisches Strafgesetzbuch, Handkommentar, 5. Aufl., Bern 2024.
Greif Jessica, Strafbarkeit von bildbasierten sexualisierten Belästigungen, Eine phänomenologische und strafrechtsdogmatische Betrachtung des sog. Image-based sexual abuse, Diss. München 2022, Berlin 2023.
Henry Nicola/Flynn Asher, Image-Based Sexual Abuse: Online Distribution Channels and Illicit Communities of Support, Violence Against Women 25 (2019) XVI, S. 1932–1955.
Henry Nicola/Flynn Asher/Powell Anastasia, Responding to ‹revenge pornography›: Prevalence, nature and impacts, Report to the Criminology Research Advisory Council, Grant: CRG 08/15-16, Canberra 2019.
Henry Nicola/McGlynn Clare/Flynn Asher/Johnson Kelly/Powell Anastasia/Scott Adrian J., Image-based Sexual Abuse, A Study on the Causes and Consequences of Non-consensual Nude or Sexual Imagery, Abingdon et al. 2021.
Isenring Bernhard/Kessler Martin A., Kommentierung zu Art. 197 StGB, in: Niggli Marcel Alexander/Wiprächtiger Hans (Hrsg.), Basler Kommentar, Strafrecht II, Art. 137–392 StGB, Jugendstrafgesetz, 4. Aufl., Basel 2018.
Kelly Liz, Surviving Sexual Violence, Minneapolis 1988.
Kirchengast Tyrone/Crofts Thomas, The Legal and Policy Contexts of «Revenge Porn» Criminalization: The Need for Multiple Approaches, Oxford University Commonwealth Law Journal 19 (2019) I, S. 1–29.
Krumm Jürg/Gambino Luca, Unbefugtes Weiterleiten von nicht öffentlichen sexuellen Inhalten (Art. 197a revStGB), AJP 33 (2024) VI, S. 551–563.
Maddocks Sophie, From Non-consensual Pornography to Image-based Sexual Abuse: Charting the Course of a Problem with Many Names, Australian Feminist Studies 33 (2018) XCVII, S. 345–361.
Maier Philipp, Umschreibung von sexuellen Verhaltensweisen im Strafrecht, Konkretisierung strafrechtlich relevanten Verhaltens aus juristischer und sexualwissenschaftlicher Sicht, AJP 8 (1999) XI, S. 1387–1401.
McGlynn Clare/Johnson Kelly/Rackley Erika/Henry Nicola/Gavey Nicola/Flynn Asher/Powell Anastasia, ‹It's Torture for the Soul›: The Harms of Image-Based Sexual Abuse, Social & Legal Studies 30 (2021) IV, S. 541–562.
McGlynn Clare/Rackley Erika, Image-Based Sexual Abuse, Oxford Journal of Legal Studies 37 (2017) III, S. 534–561 (zit. OJLS).
McGlynn Clare/Rackley Erika, More than «Revenge Porn»: Image-Based Sexual Abuse and the Reform of Irish Law, Irish Probation Journal 14 (2017), S. 38–51 (zit. IPJ).
McGlynn Clare/Rackley Erika/Houghton Ruth, Beyond «Revenge Porn»: The Continuum of Image- Based Sexual Abuse, Feminist Legal Studies 25 (2017) I, S. 25–46.
Mckinlay Tahlee/Lavis Tiffany, Why did she send it in the first place? Victim blame in the context of ‹revenge porn›, Psychiatry, Psychology and Law 27 (2020) III, S. 386–396.
Mortreux Colette/Kellard Karen/Henry Nicola/Flynn Asher, Understanding the attitudes and motivations of adults who engage in image-based abuse, Melbourne 2019.
Muggli Sandra, Sexualdelikte im und über das Internet, insb. «Sexting», «Revenge Porn» und «Cyber Grooming», forumpoenale 5 (2025), S. 353–360.
Pieth Mark/Simmler Monika, Strafrecht Besonderer Teil, 3. Aufl., Basel 2024.
Powell Anastasia/Henry Nicola, Technology-Facilitated Sexual Violence Victimization: Results From an Online Survey of Australian Adults, Journal of Interpersonal Violence 34 (2019) XVII, S. 3637–3665 (zit. JIV).
Powell Anastasia/Henry Nicola, Sexual Violence in a Digital Age, London 2017 (zit. Sexual Violence).
Powell Anstasia/Henry Nicola/Flynn Asher, Image-based sexual abuse, in: DeKeseredy Walter S./Dragiewicz Molly, Routledge Handbook of Critical Criminology, 2. Aufl., Abingdon et al. 2018, S. 305–315.
Powell Anastasia/Scott Adrian J./Flynn Asher/Henry Nicola, Image-Based Sexual Abuse: An International Study of Victims and Perpetrators, A Summary Report, Melbourne et al. 2020.
Rackley Erika/McGlynn Clare/Johnson Kelly/Henry Nicola/Gavey Nicola/Flynn Asher/Powell Anastasia, Seeking Justice and Redress for Victim‑Survivors of Image‑Based Sexual Abuse, Feminist Legal Studies 29 (2021), S. 293–322.
Rigotti Carlotta/McGlynn Clare, Towards an EU criminal law on violence against women: The ambitions and limitations of the Commission’s proposal to criminalise image-based sexual abuse, New Journal of European Criminal Law 13 (2022) IV, S. 452–477.
Scheidegger Nora, Kommentierung zu Art. 197a StGB, in: Gomm Peter/Weber Jonas/Lehmkuhl Marianne/Pruin Ineke (Hrsg.), Opferhilferecht, 5. Aufl., Bern 2025 (zit. OH).
Scheidegger Nora, Kommentierung zu Art. 197a StGB, in: Graf Damian K. (Hrsg.), StGB, Annotierter Kommentar, 2. Aufl., Bern 2025 (zit. AK).
Scheidegger Nora, Image Based Sexual Abuse, Kontextualisierung und Analyse des neuen Art. 197a StGB, in: Wenk Jan/Lehmkuhl Johanna Marianne (Hrsg.), Cybercrime und Strafrecht, Zürich et al. 2025, S. 191–208 (zit. Image-Based Sexual Abuse).
Scheidegger Nora, Das Sexualstrafrecht der Schweiz, Grundlagen und Reformbedarf, Diss. Bern 2018, Baden-Baden et al. 2018 (zit. Diss.).
Scheidegger Nora, Ist das noch Kinderpornografie?, ZStrR 132 (2014) III, S. 318–343 (zit. ZStrR).
Schmidt Anja, The Abuse of Sexual Images between Liberal Criminal Law and the Protection of Sexual Autonomy, in: Caletti Gian Marco/Summerer Kolis (Hrsg.), Criminalizing Intimate Image Abuse, A Comparative Perspective, Oxford 2024, S. 103–120 (zit. Sexual Autonomy).
Schmidt Anja, «Die nackte weibliche Brust als Sittlichkeits- und Rechtsproblem», Verfassungsblog, 19.7.2021, DOI: 10.17176/20210719-140024-0 (zit. Verfassungsblog).
Soneji Ananta/Hamilton Vaughn/Doupé Adam/McDonald Allison/Redmiles Elissa M., «I feel physically safe but not politically safe»: Understanding the Digital Threats and Safety Practices of OnlyFans Creators, Proceedings of the 33rd USENIX Security Symposium, Philadelphia 2024.
Stark Marvin, Kommentierung zu Art. 179quater StGB, in: Lehmkuhl Marianne Johanna/Wenk Jan (Hrsg.), Onlinekommentar zum Schweizerischen Strafgesetzbuch – Version: 21.12.2024: https://onlinekommentar.ch/de/kommentare/stgb179quater (besucht am 20.6.2025), DOI: 10.17176/20241221-073942-0.
Tag Brigitte/Wyss Martin, Die strafrechtliche Einordnung von pornografischen Deepfakes, in: Jusletter 29.4.2024.
Thommen Marc/Stark Marvin, Ist das Versenden von «Dick Pics» strafbar?, sui generis 2024, S. 1–10, https://doi.org/10.21257/sg.246.
Valentiner Dana-Sophia, Das Grundrecht auf sexuelle Selbstbestimmung, Zugleich eine gewährleistungsdogmatische Rekonstruktion des Rechts auf die freie Entfaltung der Persönlichkeit, Diss. Hamburg 2020, Baden-Baden 2021.
Vogler Daniel/Rauchfleisch Adrian/de Seta Gabriele, Wahrnehmung von Deepfakes in der Schweizer Bevölkerung, in: Karaboga Murat/Frei Nula/Puppis Manuel/Vogler Daniel/Raemy Patric/Ebbers Frank/Runge Greta/Rauchfleisch Adrian/de Seta Gabriele/Gurr Gwendolin/Friedewald Michael/Rovelli Sophia (Hrsg.), Deepfakes und manipulierte Realitäten, Technologiefolgenabschätzung und Handlungsempfehlungen für die Schweiz, Bern 2024, S. 125–151.
Vuille Joëlle/Perrier Depeursinge Camille/Arnal Justine, Cybercriminalité et infractions pénales, in: Perrier Depeursinge Camille/Métille Sylvain/Vuille Joëlle (Hrsg.), Lutter contre la cybercriminalité en Suisse, Bern 2024, S. 27–53.
Materials
Bundesamt für Justiz BJ, Bundesgesetz zu einer Revision des Sexualstrafrechts, Bericht über das Ergebnis des Vernehmlassungsverfahrens vom 8.8.2021, abrufbar unter https://www.parlament.ch/centers/documents/de/bericht-ergebnis-vernehmlassungsverfahren-revision-des-sexualstrafrechts-d.pdf, besucht am 20.6.2025 (zit. Bericht BJ 2021).
Strafrahmenharmonisierung und Anpassung des Nebenstrafrechts an das neue Sanktionenrecht, Vorlage 3: Bundesgesetz über eine Revision des Sexualstrafrechts, Bericht der Kommission für Rechtsfragen des Ständerates vom 17.2.2022, BBl 2022 687 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2022/687/de, besucht am 20.6.2025 (zit. Bericht RK-S 2022).
Strafrahmenharmonisierung und Anpassung des Nebenstrafrechts an das neue Sanktionenrecht, Vorlage 3: Bundesgesetz über eine Revision des Sexualstrafrechts, Bericht der Kommission für Rechtsfragen des Ständerates vom 17.2.2022, Stellungnahme des Bundesrates vom 13.4.2022, BBl 2022 1011 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2022/1011/de, besucht am 20.6.2025 (zit. Stellungnahme BR 2022).
Amtliches Bulletin, Sommersession 2022, 5. Sitzung, Geschäft 18.043 «Strafrahmenharmonisierung und Anpassung des Nebenstrafrechts an das neue Sanktionenrecht», Ständerat vom 13.6.2022, AB 2022 S 498 ff., abrufbar unter https://www.parlament.ch/de/ratsbetrieb/amtliches-bulletin/amtliches-bulletin-die-verhandlungen?SubjectId=57459, besucht am 20.6.2025.
Bundesrat, Ergänzungen betreffend Cybermobbing im Strafgesetzbuch, Bericht des Bundesrates vom 19.10.2022, in Erfüllung des Postulats 21.3969, Kommission für Rechtsfragen des Nationalrates, vom 25.6.2021, abrufbar unter https://www.parlament.ch/centers/eparl/curia/2021/20213969/Bericht%20BR%20D.pdf, besucht am 20.6.2025 (zit. Bericht BR 2022).
Amtliches Bulletin, Wintersession 2022, 8. Sitzung, Geschäft 18.043 «Strafrahmenharmonisierung und Anpassung des Nebenstrafrechts an das neue Sanktionenrecht», Nationalrat vom 5.12.2022, AB 2022 N 2111 ff., abrufbar unter https://www.parlament.ch/de/ratsbetrieb/amtliches-bulletin/amtliches-bulletin-die-verhandlungen?SubjectId=59063, besucht am 20.6.2025.
Amtliches Bulletin, Frühjahrssession 2023, 6. Sitzung, Geschäft 18.043 «Strafrahmenharmonisierung und Anpassung des Nebenstrafrechts an das neue Sanktionenrecht», Ständerat vom 7.3.2023, AB 2023 S 109 ff., abrufbar unter https://www.parlament.ch/de/ratsbetrieb/amtliches-bulletin/amtliches-bulletin-die-verhandlungen?SubjectId=59905, besucht am 20.6.2025.
Amtliches Bulletin, Sommersession 2023, 3. Sitzung, Geschäft 18.043 «Strafrahmenharmonisierung und Anpassung des Nebenstrafrechts an das neue Sanktionenrecht», Nationalrat vom 1.6.2023, AB 2023 N 985 ff., abrufbar unter https://www.parlament.ch/de/ratsbetrieb/amtliches-bulletin/amtliches-bulletin-die-verhandlungen?SubjectId=60744, besucht am 20.6.2025.
Amtliches Bulletin, Sommersession 2023, 5. Sitzung, Geschäft 18.043 «Strafrahmenharmonisierung und Anpassung des Nebenstrafrechts an das neue Sanktionenrecht», Ständerat vom 5.6.2023, AB 2023 S 441 ff., abrufbar unter https://www.parlament.ch/de/ratsbetrieb/amtliches-bulletin/amtliches-bulletin-die-verhandlungen?SubjectId=60787, besucht am 20.6.2025.