Current Legal Situation Regarding the Statute of Limitations for Serious Sexual Offenses:
In cases of rape or severe sexual abuse of children, the statute of limitations is 20 years.
However, this statute of limitations does not begin until at least the victim reaches the age of 30. In other words, a person who was raped or severely sexually abused at the ages of 5, 15, or 29 can file a complaint or the public prosecutor can bring charges until they reach the age of 50.
This legal situation has only been in effect since January 26, 2015.
Legal Situation Between July 31, 2013, and January 26, 2015:
During this period, the suspension of the statute of limitations lasted only until the age of 21. This means that from the age of 21, the 20-year statute of limitations began.
Legal Situation Between June 30, 1984, and July 31, 2013:
In this period, the suspension of the statute of limitations lasted only until the age of 18. From the age of majority, the 20-year statute of limitations applied to rape. For severe sexual abuse of children, the limitation period was only 10 years, as before 1998, the statute of limitations was just 10 years.
Retroactivity of Legal Changes:
As a general rule, criminal law follows the principle of non-retroactivity. If new laws are enacted after an offense has been committed, the older laws remain applicable to that offense.
However, this principle does not apply to the statute of limitations. The reason: The protection of the offender’s expectation of impunity after a certain time is not covered by the principle of non-retroactivity.
Nevertheless, there is a restriction established by the Federal Court of Justice: If an offense was already time-barred when the new statute of limitations law came into effect, it remains permanently time-barred, regardless of the new legal provisions.
Therefore, it is crucial to determine WHEN the alleged offense occurred and WHAT type of offense it legally constitutes.
1. What Type of Offense is Legally Accused: Rape or “Just” Sexual Coercion – Severe or “Simple” Sexual Abuse?
Only in cases of a legally defined rape or severe sexual abuse of children does a 20-year statute of limitations apply. Simple sexual coercion or abuse generally has a statute of limitations of only 10 years.
The challenge is that the legal definition of rape has changed multiple times over the years, most recently in November 2016 (the “No Means No” rule). Since 2016, legislators have eliminated the requirement for coercion through violence or threats, making it sufficient for sexual acts to be performed against an identifiable unwillingness (however that may be interpreted).
2. Determining the Time of the Offense
The second step is to precisely reconstruct when the alleged offense took place.
As shown above, different time periods between 1998 and today have different limitations regarding the suspension of the statute of limitations, meaning how old the victim must be before the limitation period begins.
If an offense was already time-barred at the time of a legal change, it remains permanently barred. If it was not yet barred, the new statute of limitations applies retroactively to the offense.
3. In Doubt, Favor the Defendant
If the factual circumstances cannot be clearly determined and it is therefore possible that the statute of limitations has expired, the case must be dismissed.
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