Att hjälpa utan att stjälpa - Ofrivillighetsbedömningen vid våldtäktsbrott när målsäganden har en psykisk funktionsnedsättning

Sammanfattning: This essay examines the legal framework and the legal assessments regarding involuntary sexual acts in rape cases when the plaintiff has a mental disability. People with mental disabilities (here: intellectual- and neuropsychological disabilities) have greater difficulties expressing themselves and understanding other people, which puts them at greater risk of being sexually abused. Both Swedish and international studies show that people with mental disabilities often experience desexualisation from their surroundings, despite having just as real and profound desire of intimacy and sexual relations as any other person. People with mental disabilities have the right to enjoy legal capacity on an equal basis with others and to have their will and preferences respected. Hence, it is important that the legal framework and the enforcement of it provide equal protection for people with mental disabilities against unwanted sexual interactions, at the same time as the right to sexual self-determination is respected. Consequently, this essay examines how involuntariness should be assessed according to the law, and is being assessed in court, in rape cases when the plaintiff has a mental disability. With this focus, I aim to identify potential problems in this remark attributed to the interest of protection against unwanted sexual interactions and the right to self-determination. The essay is concentrated on the assessment of involuntariness in the first sentence of the first section in chapter six of the Swedish Criminal Code, and the assessment of improper exploitation of a vulnerable situation due to mental disability, in the second part of the fourth sentence in the same section. The essay is based on a legal dogmatic method regarding the examination of the legal framework, and an empirical method regarding the examination of the assessments in court. The empirical part contains a thematic content analysis of court rulings in Tingsrätter (District Courts) and Hovrätter (Courts of Appeal) since HD (the Supreme Court) has not yet made a prejudicial ruling in the matter. In conclusion, the legal framework regarding how the assessment of involuntariness should be made, is relatively unclear. I conclude that this is a contributing factor to why the assessments in courts appear somewhat uncertain, both regarding the meaning of the law and how the different assessments relate to each other. In general, the courts show some awareness of the difficult balance between protection and the right to self-determination in these cases. Nevertheless, many rulings lack the assessment of the plaintiff’s mental disability and how this has affected the actions and the situation. Additionally, there are some structural problems regarding how questions about evidence and guilt are being managed, which furthermore affect the assessment of involuntariness. Overall, deficiencies in these regards affect the possibility to consider the individual right of self-determination in these cases, which affects people with these types of disabilities’ ability to have legal sexual interactions, and further how they are portrayed by society and those around them.