Rätten att försvara sig i en partnervåldsituation - En undersökning av självförsvarsrätten ur ett genusperspektiv

Sammanfattning: In Swedish law, a person has the right to defend themselves when he or she is subject to a concrete criminal ongoing or imminent attack. This right to self-defense has been criticised for being deficient for a woman subjected to domestic violence by her male partner. The critics claim that when the woman has a real opportunity to defend herself she is not allowed to, and when she has a right to self-defense there is no chance. In case law, the objections concerning self-defense have not been successful because the violence has not been considered ongoing or imminent at the time for the woman’s (counter)attack. This paper examines the right to self-defense from a gender perspective based on science about domestic violence, to investigate if there is a right for women in these situations in reality. A legal analysis method is being used to answer the formulated questions. ‘ The first question concerns how the right to self-defense can be criticized from a gender perspective. Legally there is a lack of understanding of the woman’s situation and her real chances to defend herself against the violence. The law is formally gender-neutral, but in reality, it is not. The regulation can therefore be criticized for preserving the male norm and the social gender power structure. The woman’s situation should be able to fall under the existing requirement of imminent attack due to the fact that the danger is constantly present. The second question that is answered is how the Swedish crime violation of a woman’s integrity in 4 chpt. 4a § BrB can be changed to cater to women´s real situation. Since it is not constructed as a continuing crime, there is a lack of a right to self-defense during the period when the crime is going on, except when the violence is ongoing or imminent. At this stage, the woman misses real opportunities to defend herself. With a continuing construction, an attack would always be considered imminent for a woman who is a victim of the crime, and she would therefore have a right to self-defense at the time for her counterattack. To combat men’s violence against women, which constitutes a major social problem, the legislation must change to cater to women’s reality and needs.