Capricious credibility – legal assessments of voluntariness in Swedish negligent rape judgements

ABSTRACT

A new rape legislation, premised on the requirement of voluntariness, entered into force in Sweden during 2018. This article examines the application and interpretation of voluntariness in Swedish negligent rape judgements with a unique combination of the theoretical perspectives’ sociology of emotion and feminist-legal studies. The material consists of 12 court judgements, from the period 2018–2020, analysed by means of thematic content analysis. The findings show that the judgements in negligent rape cases are based on an evaluation of credibility, supported by evidence that consists of witness statements. These evaluations entail emotions and stereotypes about gender and sexuality, pertaining to rape myths – leading to inconsistent outcomes. Yet, some fundamental assumptions about gender and sexuality are challenged, indicating that the new law may invite discursive shifts and enhanced reflexivity in legal reasoning. The findings are valuable in the work to minimize legal discrimination and secure equality before the law.

KEYWORDS:

• Credibility
• emotion
• legal assessment
• negligent rape
• voluntariness

Acknowledgements

We wish to thank the anonymous reviewers of this journal and Aida Mobarhan for their valuable and helpful comments on earlier drafts.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. In public debate, as well as in international criminal research, the concept of consent (samtycke) is used to describe the decisive criteria of rape. The Swedish legislator decided to use the concept of voluntariness (frivillighet) instead, in order to make a distinction from the established legal concept of consent that also functions as a general ground for freedom of responsibility (see SCC 24:7).

2. Historically, the continental countries in Europe have based the rape law on the use of force, whereas the Anglo-Saxon countries has used lack of consent. The Nordic countries have traditionally relied on use of force, but the legal construction has been debated for some time. After 2004 there has been a shift in the rape discussions towards the lack of consent-model (Jokila & Niemi, 2020).

3. Nilsson (2020, p. 116) discusses how the concepts ‘consent’ and ‘negligence’ have been heavily debated and slowly implemented in the legal discourses in Sweden. This discourse field has been developed in news reports and debates about medialized Swedish group-rape cases.

4. This article is part of the research project ‘Rape or Consent – Effects of the new rape legislation on legal reasoning and practice’ (Riksbankens Jubileumsfond, project number P19-0515-1).

5. All judgements under the new law were not available at the time of the data collection, but the 391 cases represent the vast majority. We used the criteria that the defendant was accused of negligent rape (SCC 6:1a) or ‘rape, alternatively negligent rape’ (SCC 6:1).

6. In 96% of the reported rape cases in Sweden during 2018 the victims were women and the suspects were men (BRÅ, 2019).

7. The word ‘victim’ is translated from the Swedish målsägande, literally meaning ‘the owner of the case’. In fact, the state owns the case, i.e. is the legal part of the case, but the Swedish legal tradition allows the victim status to participate throughout the proceedings as the injured part, and to give their account of the event before the turn goes to the defendant.

8. For a detailed discussion about the interpretation of voluntariness and consent outside the legal system in Sweden, see Gunnarsson, 2020.

9. Note that the first question to answer by the court is if the sexual act has been carried out at all. However, this has not been a question in the above-mentioned cases as both parties agreed on that fact.

Additional information

Funding

This work was supported by the Riksbankens Jubileumsfond [P19-0515:1].