X. c. MINISTÉRE PUBLIC DU CANTON D’ARGOVIE
Summary of Reasoning: Correctly, the appellant does not dispute that as a stranger (Italian), he is subject to the provisions of the Swiss Penal Code for offenses committed in Switzerland, according to Art. 3(1) C.P.S. He maintains on the other hand, that the young girl, 15-1/2 years of age, with whom he was having sexual relations, was already capable of contracting marriage as she is under Italian jurisdiction; that she was no longer a child under 191(1) of the C.P.S. and that therefore, he had not led a child astray according to the meaning of this provision.
It is true that the capacity of a young girl to enter upon a marriage contract, according to the Convention of The Hague of June 12, 1902, is governed by (her) national law and that Art. 84 of the Italian Civil Code considers a woman aged 14 at her last birthday as capable of contracting marriage (RO 75 I 84, JT I 424 (1949)). However, it is the Swiss Penal Code which exclusively determines what is to be understood by (the term) child with respect to Art. 191 of the C.P.S. According to the text and the purpose of this provision, any boy and any girl of less than 16 years is protected. The law does not seek to preserve the sexual integrity of such persons merely in cases where they are still not physically mature, but also where they have already reached physiological sexual maturity; and this by virtue of experience which shows that adolescents younger than 16 are still not adequately developed mentally and morally so as to be equal to facing the bodily and psychological attacks which threaten them in the case of premature sexual intercourse. Art. 191 is thus based, neither on the arrival of sexual maturity, the capacity to contract marriage, nor on the physical and moral development or the character of the victim [citations omitted]. Only the limiting age of 16 is decisive for the applicability of penal protection.
The fact that, according to his national law, the appellant could have married the young girl is consequently of no help to him. Neither the capacity of the young girl to contract marriage nor the intention of the appellant to marry her can alter the fact that the young girl, aged 15-1/2, was still a child according to Art. 191 of the C.P.S. and that the appellant has committed an indecent assault according to sub-sec. 1, para. 1 of this provision by having sexual relations with her. Art. 191 of the C.P.S. would no longer apply only if the perpetrator had married the young girl before having sexual relations with her, since in this case the characteristic of indecent assault, which does not exist between husband and wife, would be absent.
When the appellant began to have sexual relations with the young girl, he knew that she was under 16 and that, in Switzerland, such relations are forbidden and punishable. If, in spite of all, he started with the idea that he had the right to act in this way, sufficient reasons according to Art. 20 C.P.S. were lacking. His belief was based solely upon the consideration that sexual intercourse with an Italian capable of contracting a marriage was not punishable under Italian law. He his never claimed, however, that he believed himself to be subject, as far as his behavior in Switzerland was concerned, to the Italian Penal Code and not to the Swiss Penal Code, and nothing gave him to believe that he could maintain that the Swiss Penal Code would exceptionally leave unpunished sexual intercourse with an Italian girl of 15 years of age even when the partners intended to marry. He should have seriously considered the possibility that, under these circumstances, the act was also forbidden; as a matter of fact, the young girl’s mother who knew of his intention to marry had specifically brought to his attention the punishable character of his behavior as far back as 1957 and then again before he had his first sexual relations with the child. After this unequivocal warning – and had he had the conscientiousness one expects of middle-class Southern Italians – he should have at least entertained doubts that would have prompted him to wonder whether he was justified in having intimate relations and would have prevented him from behaving as he did. (See RO 85 IV 76; JT IV 105 (1959)). As he has brought about, through his own fault, the error in law, he cannot base his claim on Art. 20 of the C.P.S.
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Cour de Cassation – MM. Fassler, Bachtler, Perrin, Grisel and