Kan juridik ta hänsyn till erotisk praktik? - En studie av möjligheten att i en rättslig bedömning beakta handlingsnormer för BDSM-utövning.
Sammanfattning: BDSM is a variety of erotic practices that has received increased attention in recent years, in a legal context mainly through a number of rape trials where the accused was found not-guilty. In the cases, the accused's conviction that the violence was applied in a sexual context within a voluntary role-play resulted in a verdict of not guilty, this despite the fact that the court found that there was no valid consent and that the victim had objectively been forced to intercourse. The judgments have resulted in an concern that an objection to BDSM has begun to be used only as a mean of justifying violence. It has been demanded that the courts should have more knowledge of the common principles of action standards in the BDSM community. The purpose of this paper has been to investigate and introduce these BDSM action standards in a legal context. The paper investigates how the judicial assessment can take generally accepted action standards in the BDSM community into account when an accused refers to such practice. This in light of the fact that the Swedish government has submitted a bill on the introduction of a new rape crime in which criminal liability is imposed on the person who is grossly negligence regarding the fact that the other person does not participate voluntarily. In order to fulfill the purpose of the paper, the relevant law and the government's proposals are investigated and two legal cases from the court of appeal are analyzed. The paper finds that the action standards within the BDSM culture convey similar approaches based on consent, caution, risk awareness, knowledge and communication. The paper argues that an objection to BDSM should be accepted only if it can be shown that such practice was agreed. Such awareness, along with a new criminal responsibility for negligence, may impose greater responsibility on the potential perpetrator to check for consent. This would provide better conditions to protect the sexual integrity for victims within non-normative sexual practices.
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