Michael Eriksson's Blog

A Swede in Germany

Follow-up: Changes to Swedish rape laws

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About a year ago, I wrote about a change to Swedish rape laws that threaten the Rechtsstaat and could interfere with “normal” behavior.

These concerns are validated by the recent first test of the law in the Swedish Supreme Court (Högsta Domstolen): a man has been convicted to eight months in jail on almost absurd grounds. To boot, these eight months were actually a shortening of a harsher punishment from lower courts.

Going by a Swedish source, a man visited a female online-acquaintance*. They consensually slept in the same bed, but the woman had originally declined sexual intercourse. During the night, the man still attempted sexual intercourse—and instead of making clear that she was not willing, the woman did and said nothing. After a while, the man drew the conclusion that she was unwilling, and stopped. (The source is not explicit on whether penetration had occurred at this stage.)

*It is not made clear what the purpose of this acquaintance was; however, it seems highly plausible that it had a long-term goal of romance or casual sex. The below holds even absent such a goal, but if the goal applies, it holds even more strongly.

For this comparatively trivial incident, the man was sentenced to eight (8!) months of jail on account of “negligent rape” (“oaktsam våldtäkt”).*

*Which in turns validates one of my detail concerns in the original text (look for “1 a §”)—that this newly introduced type of “rape” would lead to great complications with interpretation and whether the “rapist” would even be aware that he “raped”. Indeed, the lower courts had originally convicted him of regular rape; indeed, the man appears to not have considered his actions rape (even by the standards of the current law—by saner laws in a saner country, his innocence of rape would be highly likely, even if some other charge might have applied).

If anything, this “rape” incident proves how important it is that refusal, not consent, be explicit. Any sane person in the woman’s situation, absent any type of threat/violence/whatnot, would have clearly stated a refusal, pushed the other party away, or similarly made a disinterest clear. Moreover, if a man and woman (or two lesbians or two gays) land in bed together under such circumstances, no-one can be the least bit surprised if one of the parties “tries something”—and the other party (if not interested) must be prepared to react correspondingly. If the man above had tried the same thing in a “co-ed” sauna, I could have seen a point, depending on how fast* the situation escalated, because there are some types of behavior that are not typically encountered in a sauna—but here he consensually was in bed with a woman, and an entirely different set of reasonably likely behaviors apply.**

*I am uncertain exactly where to draw the line, but on the extremes a simple inquiry is perfectly OK (also cf. an example from my original text) while just jumping someone is not.

**But, knowing how the PC crowd tends to react, I stress that I do not say that sexual advances are a given in such a situation—just that they are sufficiently common and accepted that no-one can legitimately be surprised. Indeed, entirely platonic relationships and bed sharing is quite unusual among adult pairings of men and women.

This type of law also presents a major problem with interpreting when a set of actions moves from e.g. “making out” to “attempting sex”: Let us say that penetration had not occurred above: would it still be “rape”? What if the woman had at some point just kneed him the nuts and then run to the telephone to have him arrested: how do we now whether it was an attempted “rape” or just an attempted make-out session, given that we do not know where he would have stopped voluntarily? (Or, for that matter, whether he would have stopped, had she simply asked him…) In reverse, if penetration had taken place, is penetration that much worse than e.g. having a penis touch a thigh? Is a penis touching a thigh that much worse than a kiss?* Etc. Consider the Sorites paradox and tell me when we have or do not have a sand-heap/rape. With a clear signal from the unwilling party, that attentions are not welcome, we have an automatic, clear-cut border—without such a signal, we have guesswork and arbitrariness. Indeed, even in more general situations an “explicit consent” system is quite vulnerable to such problems, because it is virtually impossible for the one party to know when consent from the other is required (short of the absurdity of demanding consent for every single escalation of the situation). Do I need explicit consent to put my hand on a woman’s thigh? To pull her pants down? Only when I insert my penis? Moreover, if the situation above actually escalated so far that penetration took place, noting e.g. that both were originally in underwear, how can any reasonable person see a lack of protest as anything but consent. Who lets things go so far without actually being willing?!?

*In the reverse situation, depending on the woman, I might have been less on board with an unprompted kiss than e.g. an unprompted blow-job. Further, with roles reversed, is it only rape when a woman accomplishes penetration or is it enough that she e.g. grabs the penis? The law was obviously never truly intended to apply to women, but if and when it is applied to women, they might be even worse off than men.

For my part, I can only recommend visitors to Sweden to abstain from sex entirely and permanent residents to only have sex within long-term relationships or with actual paper-work to prove consent—anything else is too dangerous with this utterly idiotic law.

Excursion on misrepresentations/misunderstandings:
In the intervening year, I have seen several claims along the line that only with this law, consent became a requirement. This is a gross misrepresentation, be it out of incompetence or for rhetorical reasons: Consent was already needed. Was has changed is that the consent must be unnaturally explicit. I have repeatedly noted a similar tendency when it comes to e.g. Feminists to claim that a law that pushes the border too far would achieve something that already had been achieved by much older laws. (At least one earlier text, [1], deals with a similar topic.)


Written by michaeleriksson

July 15, 2019 at 1:19 pm

Posted in Uncategorized

Tagged with , , , ,

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