Ömsesidighet eller våldtäkt? : Våldtäktsbrottets gråzon - En rättslig analys

Sammanfattning: On the first of july 2018 Sweden adopted a new definition of rape and introduced a legislation for rape when the preparator acts negligently. It´s criminalized when the suspect undertakes the sexual act with lack of consent. Depending on if the preparator did it with intent or negligently defines if it´s rape or rape based on negligence. The main purpose is to ensure that every sexual act is grounded in free choice and to defend the sexual integrity. On the other hand it´s important for the person who continues the sexual action to trust the other persons agreements. For that reason it's also fundamental that everyone can calculate the effects of their actions in a democratic society based on law without discretion.    The purpose of this essay is to investigate the meaning of “consent”, if it´s relevant how the victim acts or when the sexual force occures for what the preparator can be blamed for. Furthermore the purpose is to, based on what is presented, analyze if the perpetrators legal rights have been dismissed for profit of the penal code. The methods used are a legal dogmatic, legal analytic and a legal politic method. The legal dogmatic method is used to confirm the legal definition of consent and what is needed to blame the suspect. This is done with the source of the law as wording of an act, legislative history and doctrine. When the law is assessed, the six cases are analyzed based on how they fulfill the demands of the rule of law and to highlight issues with the rape clause. The legal politic method is used to answer if the preparators legal rights has underdetermined for the legislation of rape by the rules of justice.    The result shows that the necessary condition of “consent” doesn´t involve any specific rules of act without the parties participating in the sexual act. The definition of participating isn’t defined which means that both active and passive behavior can be an indication for consent. The court of justice should instead focus on what has been said, happened or expressed in another way, when the court determines if it's a lack of consent between the parties. It´s not defined what expressed in another way means, instead it's up for the court to decide based on the individual situation. Furthermore, what has been said, happened or expressed in another way is relevant if the suspect can be blamed for the action. In general if the victim has been sexually active in the past, a signal is required from the victim so the preparator can understand that the counterpart doesn´t want to continue; quite the opposite if the counterpart are quiescent or ambivalent to have sex, the person who want to have sex, needs to control if the counterpart wants the same. Otherwise it's up to the counterpart to decide if the person consented to the action or not, which means it shows afterwards if a crime was committed or not. If the person understood or should have understood that the counterpart didn´t act voluntarily for having sex based on what the parts had said, acted or expressed in a other way is important for which crime, rape or rape with negligence, the preparator can be blamed for.    In consideration to the lack of requirements for “voluntarily participating” isn´t legaly defined, it's up to the individual judges to decide the meaning of it depending on the curcomstances in the individual case. Because of that, in some situations, it´s hard for the preparator to forsee the consequenses of its actions. That means that the law hasn´t fullfilled the suspects legaly rights as it should.