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Sweden: Parliament Makes Lack of Consent the Basis for Rape Charges, Introduces Criminal Liability for Negligent Sexual Assault

(July 3, 2018) On May 23, 2018, the Swedish Parliament passed legislation that changes the definition of rape under Swedish law. The law currently considers a person to be guilty of rape “who, by assault or otherwise by force or threat of a criminal act forces another person to have sexual intercourse.” (6 kap 1 § Brottsbalken [BrB](Svensk författningssamling [SFS] 1962:700) (all translations by author).) Under the new law a person is guilty of rape “who, with a person who is not participating freely, has sexual intercourse.” (Justitieutskottets betänkande 2017/18:JuU29 En ny sexualbrottslagstiftning byggd på frivillighet [201/18:JuU29] at 36; Proposition [Prop.] 2017/18:117: En ny sexualbrottslagstiftning byggd på frivillighet [New Sexual Crime Legislation Based on Volition].) The law will enter into force on July 1, 2018. (Prop. 2017/18:117 at 1.)

The government has justified the legislation by arguing that it will set an example and clarify that every human has an unconditional right to personal and sexual integrity and sexual self-determination. (2017/18:JuU29 at 1.)

New Provisions

The new provisions also specify the situations in which intercourse must never be considered voluntary. Thus, acts of intercourse that result from physical assault, threats of a crime, or spreading of negative information about someone are always rape. In addition, “improper exploitation” (otillbörligt utnyttjande) of a person who is unconscious, sleeping, seriously afraid, intoxicated, or otherwise under the influence of alcohol or drugs cannot be consensual. Nor can consent be deemed given in situations where the perpetrator is seriously taking advantage of a person who is dependent on him or her. (2017/18:JuU29 at 12.)

Silent Consent

Under the new provisions, intercourse stemming from silent consent is not automatically rape. However, silent consent needs to be corroborated by additional evidence. (See Lagrådet [Council on Legislation Referral], En ny sexualbrottslagstiftning byggd på frivillighet [A New Sexual Offense Based on Volition] 4 (Jan. 23, 2018); Prop. 2017/18:117 at 34 & 80.) The situation must be viewed in its totality to determine whether silent consent was given. (LAGRÅDET, supra, at 4.)

Negligent Rape (oaktsam våldtäkt)

Judges argue that the difficult part in adjudicating sexual crimes is determining the intent of the accused, which, according to the new law, means whether the accused was aware that he or she lacked consent. (Svea Hovrätt [Svea Court of Appeals] (Referral Response) (Yttrande Diarie No. 2016/1009, Jan. 31, 2017) at 4.) In response to this difficulty, the new law provides for liability and prison sentences for perpetrators convicted of being grossly negligent (grovt oaktsam) in obtaining the needed consent. (6 kap. 1a § of the amended BrB.) Under Swedish law gross negligence has been described as “conscious negligence or more serious forms of unconscious negligence.” (Statens Offentliga Utredningar [SOU] 2016:60 Ett starkare skydd för den sexuella integriteten [Stronger Protection for Sexual Integrity], at 269.) The test as described in the final bill is whether the person could and did do all the things necessary to determine whether consent was actually received. (Prop. 2017/18:177 at 48.)

Criticism of the Proposal

Although there has been overwhelming agreement that the new law makes clear that everyone has undeniable sexual integrity and freedom, some stakeholders argued during the consultation phase when stakeholders are asked to respond to law proposals (remissstadiet) that the law will be difficult to enforce. (See, e.g., Svea Court of Appeals Referral Response, supra, at 1; Referral Response from Anne Ramberg, President of the Swedish Bar Association [Sveriges Advokatsamfund], to Swedish Department of Justice (R-2016-2094, Jan. 27, 2017).) The criticism centers around two issues: it will be difficult to prove whether consent has been given (word against word) and, because it is unclear from the legal text, difficult to determine what specific acts would be punishable. Notably, a number of courts responding to the request for review are worried that the law will create a gap between the expectations and the results of the law, resulting in more reported cases of rape (allegations of sexual intercourse without the required consent), but fewer cases that are brought to trial, and even fewer convictions. (Domstolsverket [Swedish National Courts Administration] Referral Response (Jan. 31, 2017), at 2; Svea Court of Appeals Referral Response, supra, at 4.)

Other stakeholders, such as the Police Authority, have found that the law was well written and sufficiently clear on what constitutes criminal behavior. (Referral Response, Police Authority, to Swedish Justice Department (Diarie No. A486.049/2016, Jan. 20, 2017), at 1.)

Response from Council on Legislation

The Swedish Council on Legislation, an independent body made up of current and former Justices from the Supreme Court and Supreme Administrative Court that tests the constitutionality of proposed legislation, has criticized the law for not being predictable, arguing that predetermining what actions will be punishable cannot be done with sufficient accuracy. The Council on Legislation therefore advised against the proposed changes (Lagrådet, supra, at 5.)

Nordic Laws

Sweden is the second Nordic country to adopt legislation making lack of consent the basis for charges of rape. Iceland passed a similar law on March 23, 2018. (Lög um breytingu á almennum hegningarlögum, nr. 19/1940, með síðari breytingum (kynferðisbrot) (in Danish).) Other Nordic countries have also considered similar laws, with both the Finnish and Norwegian Parliaments recently rejecting similar proposals. (Antti Häkkänen, Expertgrupp ska diskutera behovet av en samtyckesmodell vid våldtäktsbrott [Group of Experts to Discuss Need for Consent Model in Rape Cases], OIKEUSMINISTERIO/JUSTITIEMINISTERIET (Mar. 14, 2018); Stortinget, Representantforslag om endringer i straffeloven med sikte på at voldtekt blir definert som seksuell omgang uten oppriktig samtykke [Representatives’ Proposal on Amendments to the Penal Code with a View to Rape Being Defined as Sexual Intercourse Without Sincere Consent] (Dokument 8:96S (Apr. 5, 2017).) A new Finnish citizen’s initiative was brought forward earlier this year but has not yet been brought to a vote. (Raiskauksen määritelmä suostumusperustaiseksi – Suostumus2018 [Defintion of Rape Based on Consent – Consent2018], MEDBORGARINITIATIV (June 5, 2018) (in Finnish).)

Creation of a New App

One Swedish lawyer has developed a smartphone app that persons could use to log in and with their national Bank-ID confirm that they are engaging in voluntary sexual relations. She argues that the use of the app will make sexual partners more careful in considering whether they want to engage in sexual relations with the specific person. (Stefan Wahlberg, Nu kan du signera digitalt innan du har sex – advokaten har tagit fram en samtyckesapp [Now You Can Sign Digitally Before You Have Sex – Lawyer Produces Consent Application], DAGENS JURIDIK (June 26, 2018).) What bearing the app would have on proving consent in court is unclear.