Swiss lawyer on challenges in credibility assessment in rape cases

Keystone/Luis Berg

Rape is a profoundly traumatic experience, and seeking justice often requires victims to reopen psychological wounds in court. Recently, the Federal Court in Lausanne ruled that the short duration of an assault cannot be considered a mitigating factor in rape cases. This has sparked a broader discussion on sentencing practices for such crimes.

A public prosecutor tells Swiss newspaper, the Neue Zürcher Zeitung (NZZ) that courts often impose sentences of just a few years, falling far short of the 10-year maximum under the Criminal Code. Swiss public radio, RSI, discussed these issues with Demetra Giovanettina, a lawyer at Marcellini – Galliani, who has experience representing survivors of sexual abuse in court.

RSI: In your experience, are the penalties imposed too light?

Demetra Giovanettina: Punishment is certainly an important element. However, each victim has different expectations, and I find that those driven solely by a desire for revenge are rare. In fact, I don’t believe the length of the sentence is the most sensitive issue. For most victims, the priority is obtaining a conviction that recognises their experience—being believed. A conviction acts as a tool for healing from trauma. Whether the sentence is four, five, or six years matters less compared to the need for judicial recognition.

RSI: So it isn’t a foregone conclusion that a conviction will be reached?

DG: No. In cases of sexual violence, where witnesses or direct evidence are rare, we are often left with two conflicting accounts: the victim’s and the accused’s. This makes credibility central to proceedings, and assessing credibility is highly nuanced. Two key points should be kept in mind: there is no “perfect” story, nor is there a “perfect” victim. A victim’s testimony cannot be expected to unfold like a film plot.

RSI: Are you saying that judges place too much emphasis on inconsistencies in the victim’s memories or behaviour?

DG: It does happen that a victim’s account is overly scrutinised on specific details, which risks losing sight of the larger narrative. Some judges may hold preconceived ideas about how a victim “should” respond, such as how long it should take to report a rape. In reality, responses vary widely, and there’s no standard reaction. Just as there’s no perfect narrative, there’s no typical victim, and we need to avoid overly rigid conclusions.

RSI: You mentioned the time taken to report. What other aspects of a victim’s behaviour might differ from common expectations?

DG: The choice to confide in family and friends immediately, or to not tell anyone; resuming a normal routine, or becoming reclusive; trying to forget, or attempting to remember every detail—these are all legitimate responses. Each survivor has their own path, and we can’t presume to know the “right” response without having lived through that trauma.

RSI: This perspective seems at odds with the “Me Too” era, which suggested that reporting alone would elicit empathy and belief. That’s clearly not the case in court.

DG: It isn’t, and nor should it be. It wouldn’t be fair if simply reporting were enough to guarantee belief, as some individuals may give false or partial accounts. Ideally, an investigation clarifies the facts. But as I mentioned, in cases like these, assessing credibility can yield inconsistent results. Even with the emotional toll of coming forward, justice may not provide the response the victim hopes for.

RSI: How do you support clients who have invested so much emotionally, only to see the accused acquitted?

DG: It’s difficult, especially when the client’s story hasn’t been believed. For the victim, this can be a second blow, adding to their trauma.

RSI: Could these credibility doubts discourage victims from reporting?

DG: Victims should understand that there is no certainty of being believed. But reporting is valuable in itself, often beyond the verdict. A victim might later regret not having pursued legal action or bringing their story to light, which can complicate their recovery. Reporting has its own intrinsic value, regardless of the outcome, which, sadly, can’t always be assured.

Translated from Italian using DeepL/amva