Hur vet man att ett barn är ett barn? - en granskning av förutsebarheten av åldersbedömningen vid oaktsamhet i fal av våldtäkt mot barn

Sammanfattning: The purpose of this paper is to examine whether the courts’ age-assessment in cases of negligence concerning statutory rape meet the requirement of predictability. To review the predictability of the application of the law by the courts, I have conducted a case-study based on cases from the lower courts. This study examines both how well the cases align with the directions presented by the law and the preliminary works, and how homogenous the decisions are in those parts that are not further regulated. In order to examine the uniformity of the unregulated parts of the courts’ judgements, I have in this paper tried to determine the model for a normal child from which the courts derive their assessment of a child’s age. I have also included another scientific field, developmental psychology, in this paper. I have compared the alternative norm for a child’s development presented by this science with the model generated by the courts, in order to scrutinize the underlying reasons for the courts’ assessments. My examination concluded that there were substantial flaws regarding the predictability in all parts of the age-assessment. The instructions that are available by law and preliminary works are unclear and insufficient. My survey showed that the courts, in their application of the law, do not follow the directions that are available in any satisfactory way, and the decisions are far from homogenous. However, the largest differences are found, as expected, in those parts of the rulings that rely solely on the subjective judgements of the courts. The conclusions that were possible to make concerning the courts’ interpretation of a normal child was that the judgements were discretionary and often unwarranted. Above all, it pointed to very strict demands and a conservative view of what constitutes a child. This view turned out, in the light of the version presented by developmental psychology, to differ considerably from the way children are in reality. My assumption is that the model of a normal child made by the courts is based on the opinions and preconceptions of the courts rather than reality. It is my hope that if an alternative source of information regarding the development of children were incorporated in the courts judgements, it would make the courts model of a child truer to reality and could contribute to make the subjective judgements of the courts more homogenous. In conclusion, my examination points out large and obvious shortcomings regarding the predictability in the application of the age-assessment.