Rättssäkerhet och effektivitet- en diskussion om samtyckeskrav vid sexualbrott

Sammanfattning: I wrote about a new proposition to the Swedish Penal Code (BrB) which has the purpose to complement the paragraphs regarding rape (”våldtäkt”) and sexual force (”sexuellt tvång”) with the crime sexual assault (”sexuellt övergrepp”). The new crime will imply that a person who undertakes a sexual action onto another person without the consent of that person will be punished. I wanted to discuss the proposition´s significance for the major interests of rule of law and the protection for the Swedish citizens´ sexual integrity and autonomy. The questions I wanted to answer was: 1. Is the new proposition regarding sexual assault legitimate in the light of the interest of legal certainty? 2. Are there any alternative solutions to provide both the interest of legal certainty and an efficient protection for the Swedish citizens´, and especially the womens´, sexual integrity and autonomy? To answer the questions I first did an argumentation analysis about the general question for and against a sexual offenses legislation based on consent. I based the analysis on different material: first of all two Swedish government investigations, partly discussing the issue of consent as a criteria for the Swedish sexual offenses legislation. I also based the analysis on the discussion in the Swedish legal doctrine. Thereafter I used the argumentation analysis in the discussion in which I answered the questions of this essay. In order to get additional material to the discussion I did initially also describe the legislation of some other countries with consent-based sexual offenses codes and two much-debated verdicts from the Swedish courts regarding sexual offenses. I concluded that there are several potential virtues with the proposed Swedish refrom regarding the interest of the citizens´, and especially the womens´, sexual integrity and autonomy. One major potential virtue with the reform would be a both theoretical and practical extension of the number of punishable actions in the sexual offenses area. On the other hand I concluded that there would be major risks regarding the interest of legal certainty with the reform. First of all, the criteria of consent is a much to vague term to be applicable in a legally secure way. And secondly, the proposal has an incorporated demand on the defendant to explain the manifestation of consent from the plaintiff. This part of the proposal may make it hard to the defendant to defend him- or herself against the accusations of the prosecutor. Therefore I found it a better alternative to lower the requirements for a situation to be seen as precarious for a victim of sexual offenses. This solution will criminalize more situations and at the same time be more legal certain.