(LawSiteBlog) A tough new law that will recognise sex without explicit consent as rape comes into effect in Sweden on Sunday, after the country was rocked by the #MeToo movement denouncing sexual harassment and assault.
The law stipulates that a person has committed rape if they have been part of a sexual act in which the other person has not participated ‘freely’.
Rape had previously been defined as a sexual act carried out with the use of violence or threat.
Now for someone to face rape charges, “it is no longer necessary that violence or threats were applied, or that the aggressor took advantage of the victim’s particularly vulnerable situation,” according to the government.
The law says that courts will need to pay particular attention to whether consent was expressed with words, gestures or in another manner, and judges will have to rule on the issue.
Judge Anna Hannell, who helped create the law, said there was “absolutely no requirement to formally say ‘yes’, to hit a button in an app or anything else of the same type”.
“Simply participating physically is a sign of consent,” she told Swedish news agency TT.
More than 7,000 rapes were reported in Sweden last year, a 10 percent increase compared to 2016, latest official figures show.
Rape is punishable by up to six years in prison, with a maximum penalty of 10 years if the victim is a minor.
The #MeToo campaign exposing sexual misconduct, which began with the series of allegations against Hollywood mogul Harvey Weinstein, has shaken up nearly every sector in Sweden, one of the most gender-equal countries in the world.
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More than 10,000 women in Sweden–including actresses, journalists, lawyers, musicians, doctors and construction workers–have spoken up and campaigned against harassment.
“#MeToo is changing behaviors and people now understand the extent to which sexual violence is widespread,” said Ida Ostensson of the Make Equal foundation, a key campaigner for the new law.
“We finally have legislation that protects physical and sexual integrity,” she added.
In May, the Swedish Academy announced there would be no Nobel Literature Prize this year following a major sexual assault scandal.
The announcement came after Swedish newspaper Dagens Nyheter in November published the testimonies of 18 women claiming to have been raped, sexually assaulted or harassed by Jean-Claude Arnault, an influential culture figure with long-standing ties to the Academy. He has since been charged with two counts of rape.
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The scandal sowed deep discord among the institution’s 18 members, prompting six to resign.
“It’s important that society clearly states what is OK and what isn’t,” Erik Moberg, a Swede in his thirties, told AFP.
“It makes you think about your own behaviour and that of others.”
The law was passed in May backed by the ruling coalition of Social Democrats and the Green Party.
However it has drawn criticism from several quarters including the Swedish lawyers’ association and the national law council.
Opponents say the law will force judges to make arbitrary decisions on whether or not there was consent.
According to Sweden’s annual national crime survey, the number of people reporting that they had been victims of sexual crimes almost tripled from 2012, when it was 0.8 percent of the adult population, to 2016, when it was 2.4 percent. Most assaults go unreported: Only 10 percent of those surveyed said they had told the police.
The government said in a statement that the new legislation would make it possible to convict more people of sexual abuse than it is now. Lawmakers hope that will lead to an increase in reporting.
Last year, only 60 percent of those who sought medical care at the rape center at Sodersjukhuset Hospital in Stockholm filed a police report, said Dr. Anna Moller, the head of the center. Dr. Moller supports the new legislation and said it reflected the reality of rape.
“The expectation that there should be bruises and clear evidence of physical resistance is also something this legislation moves away from,” she said. “So we think it’s natural that only active participation should be interpreted as a yes. Passivity cannot be read as consent.”
Two new crimes — negligent rape and negligent sexual assault — have also been added to the criminal code, for instances when one party goes ahead with a sexual act without consent and where it should be obvious to the offender that consent was not given. The maximum penalty for negligent rape is four years.
The new legislation is not without its critics. The Swedish Bar Association is against the change.
“We have been very critical because it’s not going to lead to more convictions,” Anne Ramberg, secretary general of the Swedish Bar Association said. “The new legislation has not lowered the burden of proof, since the prosecutor has to prove that a crime was committed and they have to prove intent.”
The Istanbul Convention, a Council of Europe convention, is the most comprehensive legal framework to tackle sexual violence against women and girls and obliges signatories to ban all nonconsensual sexual acts. A majority of European states that have signed on to the convention, however, have yet to amend their definitions of rape.