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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.)

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Written by michaeleriksson

July 15, 2019 at 1:19 pm

Posted in Uncategorized

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Changes to Swedish rape laws

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Themes like the “Rechtsstaat” and government intervention into the lives of the citizens are important in my recent writings, including several upcoming texts. The greater my annoyance as I learned that my native Sweden had just* fallen victim to a moronic rape law, which not only weakens Sweden’s status as a Rechtsstaat, but also potentially interferes considerably with the “normal” behavior of its citizens:

*The law took effect on 2018-07-01, but was decided months earlier. I am unclear how the original decision got by me: I do recall hearing repeatedly of suggestions for laws like this, but was under the impression that they had always been defeated in light of heavy criticism from e.g. jurists and defenders of civic rights. This including lagrådet.

Sexual acts now require an (almost: see below) explicit consent from both* parties. This does not only turn human behavior on its head**, but it also introduces enormous difficulties of interpretation for both the involved parties and, in case of trial, judges (cf. below).

*In theory: In reality, this will likely amount to “the woman must have consented; the man could not conceivably not have consented”. (While the law, obviously, makes no difference between hetero- and homosexual couples, I will assume a heterosexual for the purposes of this text. This partially for simplicity of formulation; partially because the bulk of the problem cases caused by this law are likely to be in heterosexual relationships.)

**Notably, very many sexual interactions include gradual and unspoken escalation by one or both parties, with the expectation that a party that wants to draw a line is explicit about not consenting to a certain step (e.g. in the form of a “not yet”, “not today”, or a slapping away of a hand). With this law, taken literally, both parties would need to give repeated consent at each stage. Absurdly, it is likely theoretically possible for a mutually consensual sexual act to amount to a mutual rape…

To make a brief comparison of parts of the old and new version of the law (Brottsbalk, 6 kap. Om sexualbrott)*/**:

*With some reservations for my translations, especially with regard to legal language, exact legal definitions, etc. Notably, the Swedish original is manifestly not written with clarity in mind.

**Here I focus on the respective “1 §”, dealing with rape/full intercourse and equivalent scenarios. The respective “2 §” extends, with lower punishments, the more-or-less same reasoning to sexual interactions falling short of full intercourse. (“sexuell handling”/“sexual act” other than mentioned in “1 §”.) I lack the specialist knowledge to judge exactly what acts will fall in the realm of which paragraph, and what might fall outside entirely; however, it is clear that an escalation, e.g. going through the “bases” and ending in a “home run”, will require multiple instances of consent. Note that this law, unlike some similar and similarly heavily criticized U.S. college rules, is not targeted at teenagers having their first experiences—it also includes e.g. what happens between indisputable adults, married to each other with children…

Old:

Den som genom misshandel eller annars med våld eller genom hot om brottslig gärning tvingar en person till samlag […]

(Whoever forces a person to intercourse through assault, violence, or threat of criminal deed […])

Detsamma gäller den som med en person genomför ett samlag eller en sexuell handling som enligt första stycket är jämförlig med samlag genom att otillbörligt utnyttja att personen på grund av medvetslöshet, sömn, allvarlig rädsla, berusning eller annan drogpåverkan, sjukdom, kroppsskada eller psykisk störning eller annars med hänsyn till omständigheterna befinner sig i en särskilt utsatt situation.

(The same [punishment etc.] applies to whoever performs intercourse or a sexual act comparable to intercourse according to the first part with a person, through undue exploitation of the person being in a particularly exposed situation through unconsciousness, sleep, serious fear, intoxication or other drug influence, sickness, bodily injury or psychological disturbances, or otherwise [original phrasing is hard to translate, but “otherwise” catches the gist].)

This is not an unreasonable definition, which mostly should work. Off the top of my head, I would offer four, partially related, criticisms: Firstly, the text is open to interpretation when the unwilling party verbally declines but passively complies; here it would be better to be explicit, especially since the involved parties can legitimately experience some such situations differently. Secondly, the circumstances of the second paragraph can be hard to judge, e.g. if one party has an unwarranted fear that the other party is not aware of*, and this would be better combined with a responsibility for the fearing or whatnot party to be explicit about not consenting (if in a position to speak, obviously); this in particular when we come to the vague “otherwise”. Thirdly, in a strict interpretation, this could be seen to rule out some entirely consensual situations. It might e.g. be illegal for two drunk spouses to have sex with each other… Something more along on the lines of a generic “is physically or mentally unable to consent” might be better than such a listing. Fourthly, the “comparable to intercourse” phrasing could, depending on intentions, stretch the rape concept too far, and is certainly a point where different interpretations are possible.**

*To give a specific example that I read of in a Swedish news paper during, likely, the early 1990s: A man and a woman were alone in a sauna. The man requested oral sex. The woman complied, later claiming that she was afraid, but apparently without protesting and apparently with no actual threat uttered by the man. She then proceeded to file rape charges… There might, obviously, have been important details left out of the paper; however, even so, this stands as a type example of why non-consent should always be explicit and the immense problems that can occur otherwise. I note that some feminist extremists actually have proposed variations of retroactive revokal of consent: If a man and a woman have consensual sex today, and she changes her mind tomorrow, then the event was a rape. What happens to a man who has sex with such a feminist in a country with so vague laws?

**This might even be the main source of the problematic extension of the rape concept compared to other countries.

New:

Den som, med en person som inte deltar frivilligt, genomför ett samlag eller en annan sexuell handling som med hänsyn till kränkningens allvar är jämförlig med samlag, […] Vid bedömningen av om ett deltagande är frivilligt eller inte ska det särskilt beaktas om frivillighet har kommit till uttryck genom ord eller handling eller på annat sätt. En person kan aldrig anses delta frivilligt om […]

(Whoever performs intercourse or another comparable sexual act with a person who does not participate voluntarily […] For estimating whether participation is voluntary or not, particular attention should be given to whether/if consent [literally roughly: “voluntariness”] was signaled by word, act, or by some other means. A person can never be considered a voluntary participant if [listing similar to the description of the original].

A first observation is that this leaves some of the criticisms against the original unchanged—and jumps from the ashes into the fire with the rest…

While the “voluntarily” part is obviously a good thing on paper, things get iffy quite fast in practice: How, absent explicit verbal confirmation, can someone be certain of consent? (And how is sex to be practically workable if verbal confirmation must be given again and again?) For instance, a man might take it as a positive invitation if, naked in bed, the woman spreads her legs—but this could have other implications. If she extends this by grabbing his penis and trying to guide him in the right direction, he can now be reasonable certain—but how does she know that he consented to the penis grabbing? The situation is absurd! It is even unclear whether the judge* is allowed to assume consent absent explicit signs, which could reduce the intended protection for the victims.** To boot, we have the “whether/if” in the translation that goes back to an ambiguity in the original; depending on which reading is chosen, the implications could be different.

*Sweden has no jury trials.

**However, from the context of the law and the discussion that I have seen, some explicit sign is almost certainly needed, even if this is not clear from the law it self: The intent is to satisfy feminist demands for explicit consent only.

Some light might have been shed by the new “1 a §”; however, it does more harm than good. The main effect is to introduce a new category of rape—“oaktsam våldtäkt” (roughly, “negligent rape”). This has the implication that if someone is “grovt oaktsam” (“grossly negligent”) when it comes to not noticing the absence of consent, it still counts as rape, no matter whether “mens rea” was present—someone might be raping someone without even knowing it! On the positive side, there seems to be some room for letting off people who acted in good faith; however, this increases the room for interpretation further yet. A special complication is that while the main text speaks of “gross negligence”, the qualifications do not discuss “lesser negligence”—only a lesser deed. Is the intention now lesser negligence or is it rather that someone who is grossly negligent will be left off if the deed, it self, was less serious?

A particular complication is the increased possibility for false accusations, a woman changing her mind after the fact (cf. above), whatnot: Contrary to feminist propaganda, false accusations already form a considerable portion of all accusations. With the combination of added vagueness and greater need for confirmation, the falsely accused will have greater problems with reaching “reasonable doubt”. In a worst case scenario, we could end up with cases like a man and a woman lying naked in bed, consensual sex spontaneously resulting, and the woman later claiming that she never explicitly consented—ergo, he “raped” her. Word-against-word cases were bad enough with the old law; the new makes it that much worse. With a law like this, chances are that fanatic feminist, unfair debater, and false accuser Anna Ardin would have been successful in getting Julian Assange into a Swedish jail (cf. [1] and links from there).

Looking at Swedish “sex legislation” in general, the tendency over the last decades has been depressing, with characteristics like fairness and Rechtsstaatlichkeit being ignored in favor of feminist whims. I note e.g. the absolutely idiotic ban on prostitution: Not only is such a ban highly disputable in it self, but the law actually turns reasonable procedures on their head and makes only the purchase, not the selling*, of sexual services illegal—something so patently absurd that I would not have believed it, had I not been used to the mindset** of Swedish feminists. An interesting consequence of law changes is that Sweden, going by naive interpretation of statistics, has one of the highest rape frequencies in the “civilized” world, despite (a) the male population being exposed to feminist messages from early childhood, (b) Sweden being one of the last countries even someone willing to rape should consider doing it in***. Many see the Swedish laws, including a very wide definition of rape, as the reason for this.****

*When the buyer/seller situation is asymmetric, it is common sense and established practice to make the selling illegal, while giving the buyer some leeway, as e.g. with drugs in some jurisdictions. It is the professional drug-seller that brings the for-own-use buyer to commit a crime—not the other way around. It is the prostitute (i.e. professional sex-seller) that brings the buyer to commit a crime—not the other way around. (Assuming that prostitution is considered illegal in any form—which really should not be the case in modern society.)

**Including e.g. a world-view based on men as oppressors and women as victims and the misogynist attitude that women are incapable of consent and self-determination (unless properly indoctrinated).

***Based on both laws and the unusually large tendency to believe female accusers.

****Others blame the immigrants.

Excursion on rape occurrence:
To put the “problem” of rape in perspective: Looking e.g. at a Wikipedia page titled Rape in Sweden, we can see that there is considerably less than one rape reported per 1000 people and year—even with these wide definitions. (Something feminists like to explain away with the unsubstantiated claim that only a small fraction of all rapes would be reported.) The simple truth is that the vast majority of all women will never in their lives be raped—and the vast majority of all men will never in their lives commit a rape.

Excursion on statutory rape:
The legal fiction of rape through “statutory rape” is a major weakness in many jurisdictions: It is very possible that even consensual sex involving someone from a particular group (notably those below some age) should be illegal. However, the abuse of the term “rape” for cases where this is the sole* cause of illegality is indefensible—they should be referred to by a more appropriate term**. In addition, it is very important that these not be considered strict liability crimes: Not only is strict liability something which must never be part of the criminal code for natural*** persons acting in a private**** capacity, in general, but with sex we often have a disproportionate risk of innocent mistakes and compliance by the “criminal” to the wishes of the “victim”, especially in countries with a high “age of consent”: Consider e.g. someone in the U.S. being picked up by a 17 y.o., who claims to be 21, shows an ID implying 21, is in a bar drinking alcohol, …***** With strict liability and the idiotic term “statutory rape”, this someone would suddenly be a rapist in the eyes of the law.

*Obviously, the term “rape” should be used if the criteria for non-statutory rape are also met.

**Exactly what would depend on the group and the circumstances.

***There might be cases where strict liability makes sense for e.g. corporations and government agencies, for reasons that include their greater expected knowledge of the law, the greater expected general competence level, and the greater risk and/or consequences of abuse.

****For similar reasons as in the previous footnote, an individual acting e.g. as a government agent might need to underlie stricter criteria.

*****Note that many U.S. states have 21 as the legal minimum age for alcohol consumption.

Written by michaeleriksson

July 2, 2018 at 6:37 am

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