En särskilt utsatt situation i rättstillämpningen - hur lagstiftarens skyddssyfte förverkligas i domstolarnas tolkning av begreppet särskilt utsatt situation

Sammanfattning: The purpose of this paper is to examine whether the courts interpret the law in accordance with the intentions the legislator had at its creation. I have chosen to work with the amendment made to the article about rape consisting in changing the term “helpless state”(“hjälplöst tillstånd”) to “particularly exposed situation”(“särskilt utsatt situation”). The paper focus on legislative development so as to answer the question of whether the courts attitude towards interpreting the new term differs from the attitude of interpretation of the old, and also why that may be. What I have found is that there were major flaws in the courts’ application of the term helpless state. Even the legislator pointed out, in the government report for the recent amendment, that practice had given the term helpless state a far more limited use than what was initially intended by the legislator. These flaws consisted, amongst other things, in the evaluation of certain solitary factors, such as sleep and intoxication, but also of unwillingness to take the whole picture in to consideration, including external circumstances. The law was changed in the summer of 2013, when “helpless state” was exchanged for the wider term “particularly exposed situation”. The purpose was to expand the scope but also, in part, to restore the protection intended to exist even before the amendment. According to my examination of the limited amount of judgments related to the new wording of the law, there is still a tendency towards a restrictive way of interpretation. The application of the term in the individual cases does not grant the wide scope that is presented in the legislative history. The courts display reluctance, despite the critique expressed by the legislator, towards allowing a combination of factors and external circumstances to be part of the evaluation of whether a particularly exposed situation is at hand. In conclusion one can determine that the attitude towards the interpretation of the new term “particularly exposed situation” is heading in a restrictive direction, as was the case with the previous “helpless state”.