Samtyckeslagen - ett steg närmare jämställdhet? - En strukturell analys av den svenska sexualbrottslagen

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: This thesis is about the proposal of a consent-based legislation regarding the crime of rape and whether or not the proposal can contribute to a change of attitude in society. The idea behind the proposal is to send a normative message, which will impact people’s values regarding sexuality and sexual contact. The proposal is said to be an important step towards a more equal society, since a great part in achieving equality between men and women is about fighting sexual violence. My question is whether a consent-based legislation can really affect the norms and attitudes about sexuality and sexual contacts in this way. Since, (unfortunately), we cannot travel to the future and have a look at the possibly normative effect this legislation might have, we will have to travel back in time instead. The main purpose of the thesis is therefore to perform a structural analysis of how the Swedish legislation on sexual offences has affected the legal and social status of women through out history. By using this knowledge I will get some leads to my answer concerning the question, if the proposal of a consent-based legislation can change the norms and attitudes towards sexuality in the Swedish society. Another purpose of this thesis is to examine some of the critique that the proposal has been given, since there are a lot of other aspects that needs to be considered when changing the law. Swedish legal history tells a story about the woman's position in society as sexually, economically and politically undermined. For several centuries, women were treated as the husband's property, especially since rape against a woman was considered a property crime. History has also shown that in many cases it is not always the law that affects the norm, but the norm that affects the law. An example of this was when the public opinion demanded a change that later gave rise to the 1984 law, which was when the legislation was made gender neutral. One conclusion that can be learned from history is that there are often attitudes in society that give rise to the law, but it is the law that reinforces and maintains these attitudes and values, and then ensures that they are complied with. Therefore, it is important that the law corresponds to the values prevailing in society. It is probable that a consent-based legislation may have the expected normative effect, whish means that it could actually take us a step closer to the pursuit of gender equality. However, this should not happen at the expense of other important values, such as the rule of law. Criticism of the proposal has consisted in the fact that the law is not foreseeable, that it opens up for a normative judgement of what is "normal" to agree to regarding sexual contacts, and that the focus of the courts ruling will be on the victim instead of the suspect. The final question that remains is, if these risks are worth taking in the fight for gender equality? My conclusion is that the critique against the proposal can also be directed against current legislation on sexual offences. The problem with the lacking of evidence will continue to exist despite a change of law. A consent-based legislation will not change the problem with the evidence in these cases for the better, but also not for worse. What it can do, however, is to contribute to changing the social attitudes regarding sexuality and sexual contacts, which I consider to be reason enough for the proposed legislation to be implemented.

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