On July 1st 2018 a major change was made in the Swedish rape legislation. The change meant that it would no longer be necessary for violence, threats or exploitation to occur in order for an individual to be held responsible for rape. Instead, rape would be now defined as intercourse or other sexual act that is comparable to intercourse with a person who does not participate voluntarily. This change was made to make sure that the interests behind the legislation, sexual autonomy and sexual integrity, would be fully protected.The purpose of thesis is to analyse what voluntarily participation means, andhow the voluntariness can be expressed. Since the thesis is based on the legal dogmatic method, this analyse will be done from the different legal sources such as the legislation itself, the legislative history, legal literature and legal cases. Initially the history behind the development of the rape legislation will bediscussed. The purpose of this historical view is to clarify how the legislationand its underlying interests has evolved, and eventually resulted in a legislation based on voluntarily participation. This understanding of the importance of sexual autonomy and sexual integrity is essential for the following analyse of how to interpret voluntary participation.Voluntary participation lacks a clear definition in the legislation which leaves room for discussion. As will become evident, the term ”voluntary participation” does not focus on a person’s inner will to participate in intercourse or a sexual act but rather the opportunity to freely choose whether or not to participate. The participation can’t be considered voluntary if it is a result of violence or threats since the free choice in these cases has been deprived. On the other hand, participation can be considered voluntary even if the person does not have an actual inner will to participate in the sexual act. The fact that the inner will does not constitute whether or not a participation has been made voluntarily or not, but rather the expressed voluntariness, means that misleading someone into having intercourse does not necessarily rule out the possibility of the participation being considered to have been voluntarily. The relation between inner will, voluntary participation and sexual autonomy in certain situations will be discussed more closely in the thesis final chapterwith the help of fictional cases, to show that the distinction between which actions should be punishable with rape and which shouldn’t, may not always be an easy question to answer.
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:su-222661 |
| Date | January 2023 |
| Creators | Lundström, Marija |
| Publisher | Stockholms universitet, Juridiska institutionen |
| Source Sets | DiVA Archive at Upsalla University |
| Language | Swedish |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
Page generated in 0.0054 seconds