Underlåtenhet att avslöja våldtäkt - En åskådares skyldighet att agera eller en möjlighet att undkomma ansvar?

Detta är en Kandidat-uppsats från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The provision regarding failure to reveal an ongoing rape has seldom been invoked in court. However, the crime was tried by the Swedish Supreme Court in 2017 and the judgment has been interpreted in another case of rape. The main purpose of the essay is to analyze the objective prerequisites for criminal responsibility regarding spectators in the event of failure to reveal an ongoing rape. This entails the demarcation against criminal responsibility for complicity as well as the exemption of the provision. Additionally, the essay analyzes the area of application of the provision. It is uncertain what kind of behavior that constitutes complicity to rape versus failure to reveal rape. A spectator seems to be responsible for complicity if the person acts in a way which reinforces the perpetrator in his intent. In other words, the spectator must convey a message, through a combination of physical activity and statements, which the perpetrator notices. According to court practice, such behavior which only lasts for a shorter period of time and is causing the rape to be counteracted, is instead to be recognized as failure to reveal rape. A precondition is however that the exemption from the provision is not applicable. The exemption is related to the protection of self-incrimination pursuant to article 6 ECHR. Discharge appears to exist if the spectator is accused of participating in the same offense to which the failure relates. The legal analysis of the essay shows that the limits for criminal responsibility is uncertain and that national court practice is inconsistent. Based on the practice of the European Court of Human Rights, I believe that it is important to weigh the interests of the spectator against the interests of the victim. Otherwise, the only situation which it appears to be certain that criminal responsibility does exist for failure to reveal rape is when there is strong evidence that support the fact that the spectator only witnessed the rape in passivity and silence.

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