Det köpta samtycket? - en jämförande studie om våldtäkt, köp av sexuell tjänst och kravet på frivillighet

Sammanfattning: The criminalization of purchasing of sex is always up for debate and therefore it is constantly a relevant subject. Since the 2018th sexual crime reform, the limit for criminal liability for rape has been the lack of voluntariness. The reform thus meant an extended possibility to convict for rape in general as well as in relation to the purchase of sex. Therefore, the aim of this essay is to investigate how the crime of purchasing of sex and the crime of rape relate with a particular focus on the requirement of voluntariness as well as to analyse if the design of the regulations should be changed to better guard their protective interests. This essay is mainly based on the generally accepted sources of law and investigates the existing law to be able to criticize it. Consequently, the essay uses a legal dogmatic method with both a critical and a constructive approach. Empirical studies can be used, in accordance with a legal dogmatic method, to criticize the rules and thus, various reports from authorities are used. I reach the conclusion that the purchase of sex and rape overlap as well as differ in many aspects. However, the biggest difference is that rape is a crime against the person and have a clear protective interest in the form of the right to sexual self-determination. The purchase of sex is, on the other hand, a crime against the public as the regulation aims to protect the general order as well as vulnerable groups. The purchase of sex is subsidiary to rape, which means that the purchases which lack voluntariness shall be assessed as rape. However, consent generally exists when it is the result of an offer. Sex trade is often surrounded by violence and constraint and the people who are selling sex are usually in a very exposed position. These are circumstances that could be assessed as rape according to chapter 6 § 1 section 1 point 2 in the Swedish penal code. Nonetheless, the amount of recorded rape reports in conjunction with a purchase of sex are very few. I am therefore drawing the conclusion that the current forms of the crimes are not ultimately designed to protect their protective interests and suggest a clearer incorporation of purchase of sex in the rape regulation.