Den straffvärda våldtäkten i ljuset av våldtäktsmyter - Betydelsen av parternas relation och våld i våldtäktsdomar

Sammanfattning: Sexual offences are one of the most offensive and traumatic crimes a person can be subjected to. Despite this, there is still resistance in several places to consider acquaintance rapes or rapes in relationships as ”real rapes”, while rapes by unknown perpetrators or with violence often are understood as the ”real rape” and the most serious ones. Those perceptions might thus lead to a situation where different perpetrators would not be equally assessed with regards to sexual offences. Against this background the purpose of this thesis is to examine, with the principle of equality as a framework, whether the relationship between the defendant and the victim and depending on whether or not violence has been present during the rape, has impact on the outcome and for the length of the sentence in rape judgments. Thereby the essay intends to answer whether certain rapes have been considered as more punishable than others, in the light of descriptions regarding the myth of the “real rape”. The study therefore consists of a case law study regarding rape judgments from the districts courts delivered under 2020. The study will illustrate that the outcome in the rape judgments differs depending on the relationship between the defendant and the victim, even though there is no support to claim that differences in the outcome can be explained only by the parties’ relationships. That the evidentiary difficulties may be different depending on the parties’ relationships seems, however, to be a fact, not at least since the international researchers claim that the decision making and the assessments of guilt regarding rapes committed by perpetrators who in some way are familiar with the victim is a more complex situation, compared to when the defendant is unknown to the victim. This might probably also explain why the result shows that the acquittal and the conviction degree differ depending on the relationship between the parties, where the conviction rate is highest when the defendant was unknown to the victim, while it is lower when the defendant in somehow were acquainted or had a relationship to the victim. The study will furthermore illustrate that the parties’ relationship in several judgments had impact for the assessment of the defendant’s intent and for the question of whether the victim participated voluntarily or not. Thus, the result suggests that the parties’ relationships had some significance of the outcome in the rape judgments. Furthermore, the result will demonstrate that there has been certain differences regarding the length of the sentences depending on the defendant – victim relationship, along with the nature of the violence. In some judgments the result suggests that rapes committed by unknown perpetrators with violence, accordance with the “real rape”, have been considered as more punishable than other equivalent rapes. The result does not, however, support the fact that the unknown rapists generally have been sentenced to a longer imprisonment than the remaining relationships categories, as previous research has shown. The result will instead illustrate that the differences regarding the average sentence lengths between the relationships categories only are minor. The result and the court’s reasoning in some judgments although raises the question of whether the courts assessments have been influenced by prejudice regarding unknown rapists. However, the study will furthermore present assessments and reasoning’s that challenges the notion that acquaintances and relationships rapes would be less serious than others, in that sense that the parties relationships has been considered as an aggravating circumstance in the penal value assessments and thus had an impact for a stricter lengths of the sentence. The result will also, however, demonstrate how the courts in varying degrees have been taken into account the violence as well as the parties relationships in the penalty value assessments. In some judgments the circumstances are considered as aggravating circumstances, but in other cases not. Thus, the result of the study partly support the fact that the parties´ relationships and the presence of violence had an impact of the length of the sentences in the rape judgments, as the result in other cases indicates just the opposite. Not only does this seem to imply that the application of law in this matters are unpredictable, with the risk of a less uniform adjudication process, but has also for the judgments that have been studied resulted in that rapes have been considered as different punishable for the same reasons. With regards to the fact the court’s reasoning and the sentences assessments in several judgments differ significantly, although the circumstances of the cases at least appears to be relatively similar, leads to the question of whether the members of the courts perceptions and attitudes about rapes has influenced the assessments in question. The result of the study hence gives reason to question whether a uniform application of the law which in all cases guaranteed equal treatment in practice has been maintained. The result of the case law study illustrates several critical tendencies in the adjudication process, and assessments that differ depending on the defendants relationship to the victim. In order to be able to transform the principle of equal treatment into reality it, however, presupposes that equal rapes are treated equal and that defendants of sexual offences in legal terms have the same conditions for an objective equal treatment – regardless of the relationship to the victim. The case law study is not carried out with the purpose of being statistically significant, however, the risk that similar inconsistent assessment can be identified in rape judgments other than those studies in this thesis cannot be excluded. In order to ensure that the defendants right to equal treatment does not just risk becoming anything other than an unattainable legal principle, my hope is that this essay can contribute to further discussion and work.