A. (born in 1970) and B. (born in 1969) became engaged in 1996, and, two years after the engagement, they began to have regular sexual relations. On September 3, 2002, whilst under the influence of alcohol, the two engaged in intercourse in A’s house without her consent, with B. filming the act. These sexual encounters continued until 2004, when the Fribourg Cantonal Police seized the tapes recorded. The Canton of Fribourg Supreme Court convicted B. of first and second degree sexual coercion and rape and sentenced him to imprisonment. In 2004, and, on appeal, in 2006, A. was sentenced with a fine for having produced and manufactured, as the protagonist, violent pornography (paragraphs 3 and 3a Art. 197 Criminal Code). The couple appealed to the Supreme Federal Court, invoking mitigating circumstances covered by article 63 Criminal Code, citing the fact that both individuals were drunk when recording the first two tapes. The Supreme Federal Court noted that A. was not a minor under the age of 16; however, she had been subjected to acts of violence that were unacceptable. B. forced her to undergo disproportionate torture and degrading and inhuman acts that contravened her human rights. Thus, B.’s heavy prison sentence was confirmed by the Supreme Federal Court. Additionally, the Supreme Federal Court judged that sexual coercion (Art. 189 Criminal Code) and rape (Art. 190 Criminal Code) may occur even if the sexual act was atypical and did not consist of the penis penetrating a woman’s genitalia.
Public Prosecutor of Fribourg Canton v. B., BGE 132 IV 120