sou · H4B360 · 2016-10-05 00:00:00 — The reasons for this are, first, that in our view the fears that have been advanced as arguments against consent-based legislation in previous legislative matters can be handled by solid drafting work and, second, that there are several advantages to be gained by amending the law so as to draw the dividing line between punishable and non-punishable acts at whether a sexual act was performed involuntarily rather than coerced by some means or through the exploitation of a person's vulnerable situation (see section 5.2 for a more detailed review of this aspect). Our proposal is thus that the framing of sexual offences should be altered by drafting the main provision of that chapter in such a way that criminal responsibility is borne by a person who performs sexual intercourse or another sexual act that, with regard to the seriousness of the violation, is comparable to sexual intercourse, with a person who is not participating voluntarily. A corresponding amend- ment is proposed for the provision on sexual coercion. To avoid our proposal leading to unreasonable expectations that this change will result in more convictions, it should be stressed that there is no reason to assume that consent legislation will lead to any substantial difference in the number of convictions. The fact is that the evidential difficulties in the present legislation will remain the same with the regulation we propose. Just as before, the prosecutor will have the full burden of proof for their statement of the act. It may even be the case that, in purely statistical terms, the proportion of convictions may decrease in relation to the number of offences reported when these proposals are implemented. This is because there is reason to believe that the number of incidents reported will rise if our proposals are implemented. If that happens at the same time as the number of offences cleared up and prosecuted remains at the same level as today, the result will be that, in statistical terms, it will appear as if the number of convictions is falling. However, our proposal to introduce liability for negligence for some sexual offences may lead to a slight increase in the number of convictions (for more information about this proposal see below). Offence of rape to be replaced by offence of sexual abuse As we are now proposing sexual offences legislation that is not based on violence and coercion as prerequisites for crimes, the importance of changing the naming of the offences at the same time should not be underestimated. Our proposal is therefore that the terms rape, sexual coercion and rape of a child are removed and replaced by other names. From a purely linguistic perspective it is questionable whether rape as the name of the offence ought not to already have been changed when the exploitation cases were added to the provision as part of the 2005 reform. In practice, the requirement for violence or threats on the part of the perpetrator was already removed at that point. Now that we are taking further steps away from require- ments of violence and coercion, a continued use of rape as the name of the offence could give a misleading appearance that there is still a requirement that the act must have been carried out using violence or coercion. If the intention of the change is to express a clearly normative message there is much to be said for introducing new names for the most serious sexual offences at the same time. In the case of the offence of sexual coercion the linguistic reasons for changing the name of the offence are just as strong. It could be argued that the offence of rape should be retained quite irrespective of whether or not there is any requirement stipulating the use of violence since the word has a clear meaning and import for the general public. However, our view is – given that there are so many opinions and prejudices surrounding what a “real rape” is – that there are much stronger reasons for changing the name of the offence. We therefore propose changing the names of the offences of rape and sexual coercion to sexual abuse and sexual violation. The names of the acts formerly called rape of a child and sexual abuse of a child should also be changed to sexual abuse of a child and sexual violation of a child. As a consequence of these proposals other crimes will also be given new names, for example the corresponding gross crimes. In this report the new names are used to describe the crimes. Participation in a sexual act must be voluntary With our proposal the means that used to be given as requirements for the offence in the provisions on rape and sexual coercion are removed. Instead the dividing line between a punishable and a non- punishable act is drawn according to whether or not participation was voluntary. The legislation we propose is usually referred to in the public debate as consent-based legislation. However, the term consent is already used in the Penal Code, and has, in that context, been given a definition that is not in line with the meaning that we think the term ought to have if used in connection with sexual offences. We have therefore used the term voluntariness in the new provisions concerning sexual offences. This term is normative and can be given the meaning deemed appropriate by the legislator. Our proposal also differs from proposals made in the past since the text of the proposed law clearly sets out the cases in which participation is not considered to have been voluntary. The proposed law states that the choice to participate must be expressed for participation to be considered voluntary. that to be accepted voluntariness must be communicated by word or deed. In practice this means that only a “yes” or participa- tion in the act can be interpreted as voluntariness on the part of the other person or persons participating. So, implicit (inner or tacit) consent will not be accepted. One important point is that there is no requirement that a person says “no” or actively shows their opposition to taking part in a sexual act. can passivity be interpreted as voluntary participation. An expression of voluntary participation is always limited in some sense to a particular occasion and to the sexual act for which the voluntariness has been expressed. If someone expresses their will to take part in a particular sexual act, it cannot be taken for granted that the person concerned also wants to take part in other sexual acts. It is self-evident that a person can withdraw from their decision to take part in a sexual act at any time at all. But that change of mind must then be expressed by word or deed so that the other person or persons participating are able to perceive this change of attitude and stop the sexual act. In the light of what is now known about, for instance, frozen fright reactions, it may seem unreason- able to require that the person who no longer wants to take part in a sexual act must express this by word or deed. But for reasons of legal security this must be required of a person who has initially expressed a will to participate but has then changed their mind. However, this requirement only applies if the person previously expressed a will to take part in the sexual act at the time when the sexual act was commenced. One consequence of the requirement that voluntariness must be expressed is that it will not be possible to express voluntariness in advance, for example in cases of sleep, unconsciousness or in another, similar situation. The reason for this is that it is, quite simply, not possible for a person who is asleep or is unconscious to express a change of mind in that situation. The law should not say in detail how voluntariness is to be expressed. It may certainly seem reasonable that everyone involved in sexual relations express orally that they want to take part. But sexual relations specifically are seldom preceded by a detailed discussion between the parties of what is going to take place. It may instead be the case that the relations develop gradually through the actions of the parties, for example by exchanging kisses, cuddles and caresses with one another. So this communication can be both direct and indirect. This means that legislation prescribing forms for how the parties have to express themselves would be regarded as unrealistic by many people and hard for the courts to apply. It is therefore left to the application of the law to determine how to assess this in each specific case. Circumstances meaning that no importance shall be attached to an explicit choice to participate It would be unreasonable for all expressions of voluntary participation to be accepted as expressions of a person’s right to self-determination. For the content of the new legislation to be clear and distinct, the law must specifically set out what circumstances mean that an explicit choice to participate will nevertheless not be accepted as voluntary participation by the legal system. Whether or not an expression of voluntariness is accepted should depend on whether some means has been used to “get a yes” from the other partici- pants. There are many advantages to having new legislation that does not differ too much from previous legislation, one being that then older case law can still also be applied to some extent to the new legislation. In our proposal the means that can under the current law result in criminal liability for rape, sexual coercion and sexual exploitation of a person in a position of dependency have therefore been given as circumstances that mean that no importance shall be attached to an expression of voluntariness. The same applies to the circumstances that result in an offence under the present legislation because the perpetrator has exploited a person's particularly vulner- able situation. However, one starting point is that for it to be of any interest at all to make an assessment of whether or not an expression of voluntariness is valid, there must always be a requirement that there is an expression of voluntariness. If there is no expression of voluntariness at all, for example because the injured party has been gripped by frozen fright or is so intoxicated that they have, in practice, been unable to express a choice to take part voluntarily, it is of no interest to make an assessment of whether or not to accept the voluntariness. Our proposal means that the second paragraph of the provisions on sexual abuse and sexual violation should state that an expressed choice to participate in a sexual act is not voluntary if: 1.it is a result of assault, other violence or a threat of a criminal act or a result of a threat to prosecute or report another person for an offence or to provide detrimental information about another person; 2.the perpetrator improperly exploited another person being in a particularly vulnerable situation on account of grave fear, in- toxication or other drug influence, illness, physical injury or mental disturbance or, in view of the circumstances, for some other reason; 3.the perpetrator induced the person to participate by grossly abusing that person being in a position of dependency on the perpetrator; or 4.the perpetrator deceived the person into participating by making themselves out to be someone known personally to that person or by exploiting that person’s error in that respect. As just stated, the circumstances that mean that no importance is to be attached to an expressed choice to take part are virtually identical to the means and circumstances stated in the present pro- visions. There are, however, some differences. In the first point there is a difference in that, for an expressed choice to participate voluntarily not to be accepted, there is no requirement that the person who performs the sexual act is the same as the person who exercised the violence or the threat against the injured party. So even a person who has not themselves exercised violence or a threat against the injured party can be punished as a perpetrator to the extent that they are aware that the injured party’s expression of voluntariness is a result of the violence or threat. This proposal means, for example, that a person who purchases a sexual service from a person who has been forced by violence or a threat to take part in sexual acts can be convicted of sexual abuse instead of purchase of a sexual service. A further change is that this point now includes both the means previously given in the pro- vision on rape and those given in the provision on sexual coercion. In the second point, sleep and unconsciousness have been removed from the previous list of situations that mean that the injured party may be in a particularly vulnerable situation. The reason for this is that it appears to be contradictory to retain sleep and unconsciousness while introducing a requirement that volun- tary participation must be expressed by word or deed. This is, not least, because it will not be possible to express in advance a choice to participate voluntarily in a sexual act. The third point means that criminal liability for exploiting a person in a position of dependency has been moved from being a separate penal provision to instead being a circumstance that means that no importance is to be attached to an expressed choice to participate. The requirements in the circumstance correspond to those previously given in the separate provision. Finally, a fourth and completely new circumstance has been added. That circumstance will make it clear that particularly reprehensible sexual frauds are punishable as sexual abuse. The deceptions that the circumstance are intended to cover are those that mean that a person who has been deceived has not been able to understand which physical person, i.e. which body, the sexual act is being per- formed with. The deceptions referred to here are of the kind where the perpetrator makes out that they are a particular person, for example a partner, and then takes the place of that person. A punish- able deception could also arise if a perpetrator performs a sexual act with a person who has, for some reason, limited possibilities of determining which person they are carrying out the sexual act with. The detailed deliberations about the content of the different points and how they are intended to be applied are set out in section 5.5.3 and the explanatory notes to the proposed statutes. Sexual abuse that takes place on the internet, for example Case law has recently established that sexual offences shall not be deemed to be offences where the perpetrator has actually carried out the act and that sexual offences can be performed at a distance (see NJA [Supreme Court case reports] 2015 p. less ensure that there is no doubt that the protection of sexual integrity and self-determination is guaranteed even in cases where the perpetrator and victim are not in the same physical place, we propose that the provisions on sexual abuse and sexual violation clearly state that criminal responsibility is also imposed if the per- formance consists of a person who is not participating voluntarily carrying out the act on themselves or with another person. For the provisions about offences committed against children under fifteen years of age, who do not have competence to participate voluntarily in sexual acts, no reference is needed to whether or not their partici- pation was voluntary. So all that has to be added to these provisions is that what was previously stated in the provision also applies if the performance consists of the child carrying out the act on itself or with someone else. An exceptionally gross offence is introduced for sexual abuse of adults and children It used to be unusual for offences to be divided into more than three degrees. However, in recent times this has become more and more common. The chief purpose of such a change is to influence the penalties imposed for serious offences so that they are more severe. The present scale of penalties for gross rape extends from im- prisonment for at least four years to imprisonment for at most ten years. But the statistics show that any use is made of the upper part of the scale of penalties. At the same time, sexual abuse is an offence with a very strong protective interest. The offence causes severe harm to the victim but also to society. By introducing a further degree for the most serious sexual offences it could be possible both to achieve greater differentiation regarding the gross offences and more severe penalties for the most serious offences of all. Our proposal is therefore to introduce an offence of exceptionally gross sexual abuse of adults and children. The scale of penalties for the new offence should start at imprisonment for six years. In assessing whether sexual abuse is to be assessed as exceptionally gross, special consideration should be given to whether the act caused exceptional suffering or an exceptionally great violation or whether the perpetrator displayed exceptionally great ruthlessness or brutality. Acts that could typically result in an offence being assessed as exceptionally gross are acts where such a high level of violence was used that the victim’s life was in danger or when the act was carried out in a particularly painful or humiliating way. Offences in which the violence used means that permanent severe bodily injuries were inflicted on the victim should also be classed as exceptionally gross. An assessment of acts committed on a child should give special consideration to the young age of the child in addition to above- mentioned circumstances. For very small children it can be assumed that penetration results in particularly great physical injuries, and this means that it ought often to be possible to class these cases as exceptionally gross. severe view of sexual offences against children who have turned fifteen but not eighteen years Since the reform in 2005 children under fifteen years have stronger protection from sexual offences. Since these children are not com- petent to consent to participating in sexual acts, the starting point is that these acts are criminal. As stated, children who have turned fifteen but not eighteen years are not covered by this special protection. However, a child is in the custody of its parents or some other specially appointed custodian until the child turns eighteen years. A person is also a child up to eighteen years of age under the definition given in the Convention on the Rights of the Child. It also follows from this Convention that children must be protected from all forms of sexual exploitation and sexual abuse. It may therefore seem problematic that the protection from sexual abuse is poorer for children who have turned fifteen but not eighteen years than for younger children. In addition, the statistics show that young women aged 16–24 years run much greater risk than the rest of the population of being victims of sexual offences. Before the 2005 reform the provision on rape stated that con- sideration was to be given to the young age of the victim when classifying the offence. But, as part of that reform, the special mention of the age of the victim as a criterion for assessing the seriousness of the offence was removed. The reason given was that this was a natural consequence of sexual offences against children being moved so that they were instead covered by the special provision on rape of a child. However, the preparatory works to the amendment stated that despite the change there could be reason for also assessing abuse of older children as gross. In the application of the law the interpretation of this point has turned out to be fairly restrictive. Against this background our proposal is that a circumstance should be added to the law to the effect that, when classifying an offence, special consideration shall be given to whether the offence has been aimed at a child. The term child thus means anyone who has not turned eighteen years. This addition is intended to ensure that that the circumstance that a sexual offence has been committed against a child will have a clearer impact on the assessment of the particular case. But, in classifying an offence, an overall assessment must always be made of all the circumstances in the particular case. So the addition we are now proposing does not automatically mean that offences committed against a child under eighteen years of age must always be assessed as gross offences. For an offence to be assessed as gross, the seriousness of the act as a whole must, in an overall assessment, justify a more serious classification than an offence of the ordinary degree. So, low age in combination with other aggravating circum- stances can contribute to the classification of an offence as gross. However, it is also the case that an aggravating circumstance can contribute to the offence being assessed as more serious within a particular level of the offence. If an overall assessment does not result in the offence being classed as gross, it can still be assessed as having a higher penal value than otherwise within the scale of penalties for the degree of the offence that it is assessed as belonging to. For this reason, too, the introduction of the new criterion of seriousness can contribute to a more severe view of offences com- mitted against young victims. Liability for negligence to be introduced for sexual offences There is justification for expanding the punishable area for sexual offences by introducing a liability for negligence for certain sexual offences. However, criminal responsibility should be restricted to the most serious violations, which are those covered by the pro- visions on sexual abuse of the ordinary degree, gross sexual abuse and exceptionally gross sexual abuse and on gross sexual violation. An assessment about whether to consider liability for negligence requires, first, that the sexual act was not voluntary and, second, that the perpetrator did not have intent for the circumstance that there was no valid expression of voluntariness. So it is only when these two prerequisites have been met that an assessment can be made that the perpetrator was negligent. The level of negligence proposed as punishable is actions deemed to be grossly negligent. In the first place the term gross negligence covers “conscious negligence”, i.e. cases where the perpetrator actually realised that it may be the case that participation in a sexual act is not voluntary, but still chose to perform the sexual act. If the perpetrator saw the risk that the other person was not participating voluntarily, then continuing the sexual acts is clearly punishable in our view. The term gross negligence also includes more reprehen- sible cases of unconscious negligence. The conduct that should, in our view, be covered by liability for negligence are the cases where the perpetrator could have done something to come to a realisation and it is also considered that they really ought to have done what they could to come to a realisation. We propose introducing liability for negligence as a separate provision in Chapter 6 of the Penal Code. The provision should state that a person who on account of gross negligence commits sexual abuse (of the ordinary degree or a gross or exceptionally gross offence) or a gross sexual violation is guilty of negligent sexual abuse or negligent sexual violation and shall be sentenced to im- prisonment for at most four years. As a result of the scope defined, both regarding which acts are covered and the degree of negligence, this criminal liability will apply to cases that are clearly punishable. Better support for the injured party in the legal process For a long time the legislator has given priority to strengthening the rights and access of crime victims to support, protection and financial compensation.