Vad är passiv (o)frivillighet?

Sammanfattning: On June 1, 2018, a voluntariness requirement was introduced in the Swedish rape provision in Chapter 6, Section 1 of the Swedish Penal Code (BrB). The new requirement implies that the absence of mutual voluntariness forms the basis for criminal liability. The actions of the victim and how their expressed voluntariness is assessed are of central importance in the evaluation. In my essay, I have examined the boundaries of the victim's voluntariness when it is not explicitly expressed through words or actions. Specifically, I have investi-gated how passivity on the part of the victim relates to the voluntariness re-quirement. Since the law came into force, the issue has been addressed by the Supreme Court in two different cases. When the question of the victim's pas-sivity in relation to voluntariness has come up for consideration by the Su-preme Court, it has been assessed in different ways. In one case, the victim's passivity resulted in a conviction, while in another case, it led to an acquittal. This raises the question of how passivity should be assessed and in which situations it indicates voluntariness or lack thereof. Another question that aris-es is how the same behavior can lead to different judicial outcomes in terms of legal certainty. Within the scope of this essay, I have attempted to find an-swers as to when passivity constitutes a basis for voluntariness and in which cases passivity during intercourse results in a rape conviction. In my investi-gation, I initially analyzed existing law and then examined both Supreme Court judgments along with several appellate court judgments. Through this work, I have identified certain assessment criteria in the legislative materials and subsequently tried to identify the specific circumstances upon which the courts based their evaluations. Based on the findings throughout the process, I have found that passivity can be interpreted as both voluntary and involuntary participation. An overall assessment must be made, taking into account, among other things, any previously communicated consent between the par-ties. This may lead to some uncertainty regarding situations that result in con-victions. However, it is a necessary consequence in relation to sexual self-determination and legal certainty. Passive behavior must be capable of being interpreted in different ways to uphold the right to sexual self-determination.