Oaktsam våldtäkt - vad utgör grov oaktsamhet? - En studie av domstolars resonemang gällande grov oaktsamhet i mål om våldtäkt alternativt oaktsam våldtäkt
Sammanfattning: In 2018, Sweden passed a new law regarding rape, which is based on consent. Prior to this, a certain amount of force or threat was required, but the current legislation is based on the lack of voluntary participation. A new offense was passed, negligent rape. Thus, criminal liability for rape does not only come in question in cases of intent, but also in cases of gross negligence. The main purpose of this essay is to clarify the grounds for decisions and how the courts reason, when trying to determine whether the defendant has acted with gross negligence. This essay also studies how the court reasons when deciding upon whether the defendant has acted with intent or with gross negligence. The essay describes the Penal Code regarding rape and negligent rape. It is also described how the Swedish National Council for Crime Prevention has studied the consequences of the new law. The study shows that prosecutors and judges are generally positive regarding the new law. However, defence attorneys are generally critical. It is also studied in the essay how authors of legal literature have argued that intent and gross negligence should be assessed. If the defendant has realized that there is a risk that the victim did not participate voluntarily, the defendant might have acted with intent or negligence. If the defendant was indifferent regarding the fact that the victim did not participate voluntarily, the defendant has acted with intentional indifference. If the defendant was not indifferent regarding this fact, the defendant has acted with recklessness. The Swedish expression translates to “knowingly negligent”. If the defendant was not, but should have been, aware of the risk that the victim did not participate voluntarily, the defendant has acted with negligence. This Swedish expression translates to “unknowingly negligent”. In most cases, gross negligence is equal to recklessness, or acting “knowingly negligent”. However, negligence or acting “unknowingly negligent” can in some reprehensible cases be seen as gross negligence. The essay also clarifies some of the court practice and studies regarding the evaluation of evidence, which has a close connection to the assessment of whether the defendant has acted with gross negligence. Lack of evidence is often a problem in cases of rape. Often, the only evidence is the statement of the victim along with some supporting evidence, often witnesses who were not present at the time of the rape but can only speak to what the victim has told them. Through the analysis, several factors can be defined that are often taken into consideration when the court is reasoning about whether the defendant has acted with intent or gross negligence. It is often considered why the sexual act ended, what kind of relationship the victim and the defendant had prior to this event and if they ever had any sexual relations before. It is also often considered how active or passive the victim and the defendant were. The analysis also mentions the evaluation of evidence made by the court. The essay concludes that there seems to be a unitary court practice. The only exception to this might be the most recent judgment by the supreme court. It could be argued that this judgment contradicts some of the grounds for decision in other judgments that have been studied in this essay. Time will show whether this precedent will lead to new, different reasonings.
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