Våldtäkt bortom (o)rimligt tvivel? - en progressiv undersökning av bevisproblematiken i våldtäktsmål kontra en potentiell samtyckesreglering

Sammanfattning: The purpose of this essay is to shed light on the problems of proving a perpetrator guilty in rape-cases and to examine certain consequences of a future regulation based on consent. Using a traditional judicial method I have sought to answer the question of how a law of consent would affect the difficulties regarding the, from an evidential point of view, challenging position in cases concerning rape. Today rape is regulated in 6 chapter 1 § in the criminal code and the crime constitutes when somebody forces another person to intercourse or other sexual act using violence or threat or in other way exploits another person who is in a vulnerable position. The challenge in proving a rapist guilty lies partly within the lack of objective proof since in most rape-cases there is only the perpetrator and the victim present when the alleged crime is committed. For this reason the members of the Court are limited to an assessment based solely on credibility and reliability of the testimonies of the two parties. The members of the supreme court have gone from a perpetrator-friendly attitude where they have deduced themselves with the perpetrators argument of consent – to an assessment based on the woman’s right to her own body. Despite the modern features of the grounds for decision the trials often reach a clearing verdict. Even though the court objectively have identified the acts of the perpetrator as fulfilling the necessary prerequisite, the court often come to the conclusion that there is a lack of subjective requisites. A shortcoming caused by the prosecutor failing to prove criminal intent regarding that the sexual act is caused by threat or violence. In an attempt to enlace acts of penal value that are not covered by todays regulation a criminalization of all sexual acts that is performed in lack of free will is suggested in the committee report, A higher level of protection for the sexual integrity. The committee also suggests that the free will needs to be expressed. Violence, compulsion and exploiting of a vulnerable position are kept as elements that indicate that the crime has been committed, not as requirements to reach conviction. In addition the committee suggests an insertion of responsibility for negligence. In the cases where the perpetrator has acted in great carelessness concerning the victim’s will to participate he or she should be held criminally responsible. In summary the (suggested) Swedish regulation based on consent is expected to expand the possibilities of reaching a conviction in cases where a lack of intention has been an issue. The fact that every person that wants to participate in a sexual act has to express this to be able to engage in such activities (without criminal offence) will presumably eliminate some of the evidential problems in rape-cases not to mention the amount of rapes being prevented. Since there must be an expression of will the perpetrator is encouraged to at a sexual encounter ask the question and at the trial answer the question as to if the victim, apart from threats and violence, really wanted to take part in the act.