By Isak Lefvert

Arguably, no crime has gained as much public attention the past year as rape. Already heatedly discussed, many countries’ legislations came under scrutiny during the #Metoo movement. Under a criminal code amendment popularly named “Consent Act”, Sweden has in several circles been feted as a pioneer in using the lack of consent to define rape. Here, I will be discussing the changes brought about by the Act, to determine whether the Swedish system could serve as a role model for other countries.

The Consent Act is most accurately described as two amendments, one on each of the two sides of the definition of what is a crime. Those must thus be explained briefly; to commit a crime, one must firstly take an action which is criminally wrong, and secondly be so aware of that the action is wrong that one can be reasonably expected not to commit it – to have criminal intent. This means that if there is no criminal intent, there is no crime, regardless of how gross the action is.

The first amendment of the Consent Act is consequently an attempt to widen the scope of the criminalized action. Rather than, as before, requiring force or exploitation of the victim, rape is now defined as performing intercourse with someone who does not consent. The second amendment can be said to prescribe that one no longer must be as aware of the lack of consent as before, to still possess criminal intent. The perpetrator can now be only “grossly negligent” to the victim’s lack of consent and still commit negligent rape, albeit for a milder penalty. By contrast, to commit rape of normal degree, one still must be indifferent to whether there is consent. 

From the first amendment follows that the first step is to determine there is consent to intercourse. Previously, a matter of frequent outrage was that the defence could get away with claiming that the victim was awake, if it could not be proven that the victim was asleep. Now these objections will not hold. Now it must only be proven that the victim has not expressed consent. This means that, if the victim is completely passive, performing sexual intercourse with them can constitute rape. 

However, if this were the entire Consent Act, it would be a tame one. Because if regular intent were still to be required, the defence could object that the perpetrator thought that there was consent and was not indifferent to whether the victim consented. Since this is very difficult to contradict, such an objection would probably succeed.

I would thus argue that the core of the Consent Act lay in the second amendment. I like to imagine it as a scale – a thermometer, if you will – of consent from the perpetrator’s point of view. The premise is always that the victim does not consent. When it can be proven that the perpetuator knows this, the criteria for rape are already met and there is no use for the thermometer, which measures indicators. Indicators of that the victim consents boosts the temperature, while indicators of the contrary presses the mercury down to the negative. Only when the temperature is at the bottom, can the perpetuator be considered indifferent to whether the victims consents to sexual intercourse. The change through the second amendment is that the value of the indicators does not have to be as negative as previously to constitute a crime. Thus, under the label of negligent rape, the Act criminalizes the negligence to not investigate one’s sexual partner’s consent, when there are clear indicators that there is none.

Now, let us escape the abstracts of the Consent Thermometer, and find out – what indicates consent? Fortunately, the Swedish Supreme Court has already helped to explain this. Pure passivity, the Court stated, will rarely be an indicator of consent. Undressing before and sleeping in the same bed with someone are not positive indicators either, the Court has made certain. In some unusually explicit comments, the Court expressed that rolling towards one’s bed partner and helping them to remove one’s underwear are two acts indicating that one consents to intercourse. Whilst this paints a picture on how to value consent indicators, it is still uncertain what the negative indicators of consent are. If one lays in the same bed as a friend, is the previous platonic relation a negative indicator? If the bed partner previously rejected someone else, does this indicate that oneself too will be rejected? As these queries remain unanswered, my analysis is that if one happens to share a bed with someone, and then perform intercourse with them, this alone does not constitute even negligent rape.

It is safe to say that the Swedish bar of what is criminal rape is set low. Not necessarily ideally low, though. As hinted above it is not required to obtain a formal “yes” to avoid the risk of committing rape. Even though more deeds probably will be classified as rape than before, there will still be loads of recollections of sexual assaults that never can be satisfied through a conviction in a court of law. In a trial, a nervous victim must furthermore anticipate being examined on where they had their hands, how they moved, and how they handled their underwear. And finally, even if a rapist is convicted under the Consent Act, the penalty for negligent rape is noticeably less severe than for rape of normal degree.

There are however strong reasons behind these limitations. Even if it is possible to criminalize the pure negligence of asking one’s sex partner for permission, this is not (yet) perceived as criminally wrong, probably since consent to sex is expressed through more than words. It would therefore rather hurt than strengthen the public trust in the justice system if people were to be punished just for not asking. Also, whilst it must be tough for a victim having to defend very intimate behaviour of theirs in court, this is unavoidable when the crime takes aim at such an intimate situation, because the perpetrator still must be proven guilty. And whilst it might seem odd that the legal definition of the exact same unwanted intercourse can vary depending on what the perpetrator thinks, this follows a fundamental principle: never should anyone be held as a criminal, if they could not be expected to obey the law. Consequently, if the criminally wrong action is to perform intercourse with someone who does not consent, one must not be held responsible if one could not be expected to understand that there is a risk in that the sexual partner consents. So, when the indicators are ambiguous – when the Consent Thermometer is at zero, or even slightly below – the criminally wrong action must remain unpunished. In line with this, the penalty should also be milder for negligent rape, than for rape.

Conclusively, despite broadening the scope of the rape crime, the Consent Act fails to criminalize all non-consensual sex. As I have argued, this is for the best, to the extent that I would present the Act as an example to follow. It is essential to remember; law is not reality. A Consent Act is just a frame, in which we can fit various bedroom behaviour. So, if we, sometime in the future, would conclude that our picture of rape no longer fits, we can adjust the frame. And since the rape crime has been amended on three occasions in the past fifteen years, the day for reframing will return. For sure.

Illustrations: Angelica Halvarsson

Isak Lefvert is a second-year law student, who spends most of his days hiding from the sun in the Ekonomikum basement. He adores athletics, pear flavour (in all shapes or forms), and discussing the Academy Award snubs.

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