Våldtäktsgärningens identitet: En granskning av våldtäktsgärningens konstruktion utifrån föreställningar om genus och ras

Sammanfattning: Drawing on the perspective of Critical Legal Studies, the current thesis is questioning the legal method as well as its effects, by looking at the rape provision. The legal construction of rape during court proceedings is analyzed, with the purpose of determining the possibility of unbiased judgements in relation to race and gender. In doing so, the thesis intends to answer the question: how is the act of rape constructed during a court proceeding based on conceptions of race and gender? The thesis analyzes rape cases from Malmö District Court by using critical discourse analysis and by employing Feminist Legal Theory as well as Critical Race Theory (CRT). The construction of rape is, when solely assessed through the method of judicial interpretation, dependent on both criminal procedure provisions and penal law provisions. According to the Swedish Penal Code and the Code of Judicial Procedure the act of rape is constructed firstly by an assessment of the necessary conditions in the penal provision criminalizing rape, and secondly by the alignment of the penal provision to the specific case. However, by employing critical discourse analysis the legal method is in the current thesis challenged for its ways of perpetuating a normative notion when deciding rape cases. Furthermore the current thesis argues that the normative notion, in terms of what constitutes a sexual act, a defendant, a victim, etc., is strongly influenced by underlying conceptions of race and gender. On a discursive level, this means that the court easier recognizes a rape when it is constructed as a sexual act (specifically involving penetration), done by an unknown person (depicted as a non-white male) to a person (depicted as a white female) who shows her non-consent by verbally or physically resisting. The court’s comprehension of rape is limited as some bodies and practices do not fit the norm, and therefore are not to a full extent included in the scope of the criminal legal protection or responsibility.