Fri och villig? - En diskursanalys av frivillighetsrekvisitet i våldtäktsbestämmelsen ur ett genusrättsligt perspektiv

The 1st of July 2018, a new legislation regarding rape came into force, based on consent and voluntary participation. Considerations regarding a consent-based legislation has been ongoing and disputed, not least during the last century and twice before the question has been investigated in the 1998 sex crime committee and the 2008 sex crime investigation. Since the change it is no longer required for the perpetrator to use violence or threats during the criminal act in order to be convicted for rape. Instead the line between a punishable and a non-punishable act is drawn according to whether the participation was voluntary. The provisions of the legislation left several gaps open for the courts to fill, the most relevant concerns the necessary condition for crime, voluntariness. Since voluntary participation forms the basis for the rape provision, it is up to the courts to interpret what actually constitutes a voluntary participation. The purpose of the essay is to determine how the court applies the provision to cases and what meaning they give voluntariness. Further it investigates if the legislation strengthens individuals’ rights to sexual self-determination.The overall framework of the essay is based on the constructivist approach that our knowledge of the world is located in social, cultural, historical and political context, which follows that laws are considered as social constructions. A gender perspective is applied, contributing to a critical examination based on aspects of gender, power and sexuality. Using a discourse analytical methodology, legal judgments after the legislation are analyzed. The general aim is to outline the premises that underlies the judgment when using the necessary prerequisite voluntariness. With the court’s judgements as material, assumptions and underlying premises are investigated to illustrate and understand the legal definition of voluntariness. It is still early to determine any pattern in the judgments and a voluntary practice will probably take time to establish, not least because the exclusively involuntary cases have more difficult in getting to court. The analysis leads however, based on the preliminary works of the legislation and the cases studied, to the conclusion that several circumstances are not captured by the legislation, partly because of how Swedish criminal law understands all individuals as free, gender neutral with capability to make decisions. Voluntary participation is dependent if the victim has had a free opportunity to take a stand on a participation. The conclusion is that the character of the crime rape, which are committed due to structural reasons, requires to be judged with an awareness of these structures and can not be considered as an isolated event. In order to provide protection for vulnerable groups who do not possess the same conditions and opportunities to express voluntariness, not only formally but by using their self-determination, it requires the court to recognize and take these patterns into account within the legal application. In addition to a contextualized legal application, other measures are required, including education in the judicial system and an awareness of maintaining and creating discriminatory gender norms.