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Article Sweden: Supreme Court Defines Negligent Rape

(July 17, 2019) On July 11, 2019, Sweden’s Supreme Court issued its first judgment in relation to the country’s amended rape legislation, finding that a defendant had been negligent in having intercourse with a woman for not being sure that she was participating freely. (Högsta Domstolen [Supreme Court], Case No. B 1200-19 (July 11, 2019).)

Swedish Rape Legislation

On July 1, 2018, a new provision of the Criminal Code containing a new definition of rape based on lack of consent and establishing negligent rape as a new crime entered into force in Sweden. The new provision defines rape as an act committed by

[o]ne who, with a person who is not participating freely, engages in intercourse or in another sexual act [that is comparable to unwanted intercourse because the violation of the victim is so severe] is guilty of rape and subject to imprisonment for no less than two years and no more than six years. In determining whether participation is voluntary or not, special consideration should be given to whether the voluntariness has been expressed through words or actions or in another way. (6 kap. 1 § Brottsbalk (BrB) [Criminal Code] (all translations by author).)

The Criminal Code definition of negligent rape provides that “[o]ne who commits an act that is mentioned in 1 § and is grossly negligent in relation to the circumstance that the other person is not participating freely is guilty of negligent rape and subject to imprisonment for no more than four years.” (6 kap. 1a § BrB.)

Case Background

A man spent the night at the house of a woman with whom he had previously communicated only via social media. They slept in the same bed and, during the night, he engaged in sexual intercourse with the woman and also “inserted his fingers into [the victim’s] vagina.” (Case No. B 1200-19, para. 4.) Throughout the process the woman was passive and did not give the impression that she wanted to participate in the act. (Id. paras. 10–11.)

The District Court and the Appeals Court had convicted the man of rape, noting that he was indifferent to whether the victim was participating freely. (Case No. B 1200-19, para. 2; Hovrätten for Övre Norrland [Appeals Court for Upper Norrland] Case No. B1167-18 (Feb. 5, 2019), on file with author.)

The case was appealed to the Supreme Court to address whether the defendant should be convicted of rape or negligent rape and what the sentence should be. (Case No. B 1200-19, para. 7.) The Supreme Court overturned the lower courts’ decisions, finding that the prosecutors had not proven that the man had the requisite intent needed for rape—that is, active intent to commit rape, or an intent of indifference to whether the victim was participating freely of her own free will (likgiltighetsuppsåt)—and thus could not be convicted of rape. (Id. para. 7.)

Supreme Court’s Analysis

Referring to legislative history (Prop. 2017/18:177s. 31 f.), the Court noted that

[t]he boundary between a criminal and a noncriminal act is whether the participation was voluntary. … A person who, against his or her will, is the object of a sexual advance is not responsible for saying no or in any other way expressing his or her objection. A person who participates freely in sexual relations also does not need to show his or her desire for sexual relations. (Id. para. 14.)

The Court further explained that sleeping in the same bed while wearing only underwear did not mean that the woman participated freely. (Id. para. 33.)

The Court went on to argue that, although passivity could also be a sign of voluntary participation, the window for finding that passivity alone constitutes consent is limited. (Id. para. 16.) If it is determined (as in this case) that consent was not expressed, the court must proceed to evaluate whether the person committing the alleged act knew or should have known that the act was not consensual. (Id. para. 17.)

No Consent Provided

The Court first determined that the acts committed (sexual intercourse and vaginal penetration with the perpetrator’s fingers) constituted the act of rape. (Id. para. 29.) The Court then proceeded to establish that the victim had not participated freely, noting that her witness statements were clear, she had told two persons close to her about the incident, she had previously in an online message told the man that she did not want to have sex with him, and she had been passive throughout the sexual acts. (Id. paras. 30–31.) The Court noted that merely agreeing to sleep in the same bed only in their underwear did not mean the parties had also participated freely in the sexual acts. (Id. para. 32.) The Court then stated it had been proven beyond a reasonable doubt (ställt utom rimligt tvivel) that the sexual acts had taken place without the victim participating freely. (Id. para. 36.)

The Court therefore had to look at the intent of the defendant.

Question of Defendant’s Intent (Uppsåt)

Under Swedish law, persons can be convicted of rape only if it is proven that the person who commits the act of having sexual relations with someone who is not participating of his or her own free will does so with active intent or indifferent intent. According to the Supreme Court the prosecutor did not prove that the defendant was indifferent to whether she was participating freely, and thus did not demonstrate indifferent intent. (Id. para. 38.) The court therefore proceeded to determine whether the defendant could be convicted of negligent rape.

Deliberate Negligence (Recklessness)

The first prong of the test of deliberate negligence (medveten oaktsamhet) is similar to that in cases of indifferent intent (likgiltighetsuppsåt)—that is, the actor must have understood or suspected that there was a risk that the other person was not participating freely. The difference here compared to likgiltighetsuppsåt is that the actor is indifferent to the risk, not to the act. In other words, he is not indifferent to whether or not he sleeps with someone who is not participating freely, but is indifferent to the risk that the other person is not participating freely, and participates while assuming the person is participating freely.

Subconcious Negligence (Negligence)

Subconcious neglience (omedveten oaktsamhet) is when a perpetrator has not understood, but should have understood, that a certain risk was at hand—that is, in this case, the victim was not participating freely. The culpable act here is not having attained the requisite knowledge about the risk, even though one should have. (Id. para. 28.)

Supreme Court’s Decision

The Supreme Court, unlike the Court of Appeals, found that the prosecutors did not prove that the defendant knew or understood that the victim was not participating freely. (Id. para. 38.) However, the message that the victim had sent to him previously “must … have given him reason to believe that she probably was not interested in sexual relations that night.” (Id. para. 38.) Even though people can change their minds regarding their willingness to participate in sexual relations, the Court concluded that it had been established that the defendant, at the time he entered the house of the victim, “knew that it was possible that the victim might not want to participate in any sexual acts.” (Id. para. 38.) Furthermore, as evidenced from the witness statements made by the defendant, he was not sure that she wanted to have sex with him when he proceeded to engage in the sexual acts, and at one point leading up to the acts, was not sure if she was awake. (Id. para. 39.) The defendant’s statement that he stopped the intercourse when he thought the victim, who was for the duration on her stomach with her face turned away, was pulling away from him because she no longer wanted to participate, in the words of the Court “prove[d] that [the defendant] also after the initial stages [of the sexual act] understood the risk that the injured party was not participating freely.” (Id. para. 41.) The Court thus found that he had understood the risk of her participating freely, and by continuing his advances he was deliberately negligent. (Id. para. 43.)  Deliberate negligence is generally considered gross negligence (recklessness), and there was nothing to mitigate it here. (Id. para. 44.) In thus finding that he had been grossly negligent, the Court held him responsible for the crime of negligent rape. (Id. paras. 48–49.)

The Court found that the penal value for the negligent rape was equal to eight months of imprisonment (id. para. 50), which was added on to sentences for other acts, including the rape of a child and sexual assault. The Court reduced the sentence by one year and, thus, the man was sentenced to imprisonment for a total of two years and three months. (Id. para 53.)

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