Rape or consent? Effects of the new rape legislation on legal reasoning and practice
The Swedish rape legislation reform in 2017 adopted a requirement of voluntariness (popularly “consent”). This project is the first to study the new rape legislation and the dynamics between it and institutionalised legal culture. The aim is to study the application of the rape law from a combined feminist and emotion-sociological perspective, focusing on the emotive-cognitive reasoning of prosecutors, judges and lawyers about the law and its implications.
1. What discursive perceptions and interpretations do legal actors present in interviews, and how do they reason about the application of the new law?
2. How does the new legislation affect trial procedures in practice, regarding focus on the accused/victim, and the construction and presentation of evidence?
3. How do judges operate the new legislation when writing judgements: what perceptions and assessments about voluntariness, gender and sexuality are reflected in the written judgements?
We follow 16 cases of rape in district court and the appeals court. Legal actors are interviewed and shadowed, trials are observed, written judgements are analysed. The project enhances the knowledge of legal discrimination as part of how processes of silencing emotions interact with gendered power structures. It contributes to developing the emotive-cognitive reflexivity of legal professionals regarding tacit norms and routinized behaviour. This is important in order to further strengthen the legitimacy of the legal system.
Final report
Aims and development
The aim was to study legal implementation of the consent-based rape law and its requirement of voluntariness from a combined feminist and emotion-sociological perspective, an original approach to study the legal handling of rape. Through interviews and observations of rape case trials, the project inquired how legal professionals feel and think about the law, how they do the law in practice, and how written judgements render the motivation of the verdict. The Swedish implementation of the law was approached as a case of 1. challenging core legal values of rationality, autonomy and objectivity, and 2. how modern legal systems translate evolving social norms about gender and sexuality into legal practice.
The project achieved its aim and generated new knowledge, contributing to both the research fields and to legal practice, as reflected by the already received legal professional interest, and the praise from double-blind international reviewers of publications. A research monograph is scheduled for release June 2025. The draft manuscript returned the following comment from the anonymous expert reviewer: “This is a unique book that delves into details that are not often treated with such empirical rigour and theoretical creativity and it makes a clear contribution to the field. It engages with the international recent scholarship and gives a contribution to this I find to be highly interesting and inspiring. This is a contribution of high quality and relevance to both society and scholarship.”
Implementation
Data collection began, after approval of the Swedish Ethical Review Authority, June 2020 (Dnr. 2020-02205) and ended in spring 2022. Recruitment was initialised by presenting the project at four strategically selected district courts and two appeals courts, and thereafter based on self-selection and snowballing. We followed 18 rape cases and made 58 audio-recorded in-depth interviews with the involved legal professionals, and an additional four focus group interviews with female and male lawyers respectively, and mixed appeals court judges and district court judges respectively (in total 23 judges, 15 prosecutors and 24 defence lawyers/victim counsels). The gender ratio was 42% men. For all 18 cases we observed and took field notes of the trials, collected indictments, judgements and appeals. In five cases we were allowed to observe Appeals and District Court deliberations, and in two cases we followed the preliminary investigation. All the data was analysed in the qualitative data program ATLAS.ti, in several rounds of abductive coding. The final round of coding was made during a one month stay as Visiting Group financed by Bielefeld Zentrum für Interdisziplinäre Forschung in November 2023.
Main findings
1. The implementation of the consent-based rape law is marked by uncertainty. Judges were often uncertain about the evidentiary requirements and the evaluation of evidence, while prosecutors and lawyers (victim counsels and defense lawyers) failed to see a consistent pattern in how different judges interpret and apply the law. The results demonstrate that the law requires adaptation of professional roles, of legal evaluation and interpretation, and consequently it demands enhanced critical reflexivity regarding enactment of core legal values. To make an objective assessment of both parties’ stories, empathic imagination is needed, grasping “the situation as a whole” (as stipulated in the preparatory works) and how relational bonds and circumstances orient situated action rationality. Skilled defense lawyers demonstrated a high degree of role adaptation in this regard and put much energy into negotiating empathy for their clients. Prosecutors were usually content to ‘present the evidence’ and rely on judges’ expertise to evaluate it. Judges, however, requested that prosecutors take a more active role in explaining the meaning of the evidence. While a crucial task of the prosecutor is to encode an event into legal terminology, in rape cases there is additional need for empathic encoding. Some victim counsels took an active role as advocator, negotiating empathy for the complainant and focusing on the responsibility and action rationality of the defendant. This achieved a more equal balance between the parties in the courtroom but also highlighted the integrity-breaching aspects of the rape trial, which have been normalised when directed solely at the complainant.
2. There is a need for legal professional training in the competency of evaluating stories, that is, in systematic analysis of qualitative evidence (stories). Traditional legal encoding and evaluation obfuscate the complex interpretive process of applying juridical theory to ‘reality’ and favors ‘hard’ (technical) evidence which appears to be “objective”. The rape law centers the complainant’s story as main evidence, upsetting habituated ways of doing objectivity. While legal professionals also emphasize the need for supporting evidence, its significance depends on the story. If the story is found to lack credibility, the requirements on supporting evidence increase. The findings suggest that credibility is “a feeling” but bits and pieces of supporting evidence were used as “objectivity life buoys” in production of legal reasoning. Similarly, “the feeling” of a (in-)credible complainant story was objectified by using “credibility criteria” issued by the High Court. These have been criticized by psychological research and some have therefore been withdrawn by the Supreme Court. Nevertheless, several criteria - including the “character of lived experience” - were present in almost all judgements. The study also found that judges drew on personal experience and various types of ‘common sense’ in their judgements. This includes ‘legal logic’ and its routine labelling of evidence in rape cases as ‘bad’. Thus, there is a lack of understanding and a methodology for evaluating qualitative evidence.
3. The study confirms previous research findings that, while rape myths and sexual stereotypes evolve, lingering perceptions tied to a traditional privileged male perspective on sex and sexuality are inherent in how modern law is taught and practiced. The results above are thus representative of both women and men legal professionals. However, the study showed that “female” alongside “male” common sense fits within the legal logic of the new rape law, opening the way for the evolution of the legal system. For example, the law aims to place the responsibility for reciprocity on the active party and thus reduce the focus on the complainant’s behavior. When this was applied, stereotypes such as male ‘unstoppable’ sexuality appeared irrational, and less time was spent examining the complainant’s expressions of (un)voluntariness. The strongest pattern, however, was that judges allowed the defense to avert focus from their client to the complainant, who was portrayed as either a deliberate liar or someone naively misled by well-meaning friends and relatives. The positioning of the complainant as a potential liar is a starting point in the legal process, legally coded as an “alternative hypothesis”, which justifies the scrutiny of the complainant's story even after it has been found credible enough to proceed to prosecution.
The Swedish consent-based rape law, while aiming to push sexual norms in society at large towards increased sexual equality and mutual respect for bodily integrity, is obstructed by the norms of legal practice. Traditional stereotypes of male sexual initiative and female vengefulness are deeply embedded in the legal system. Drawing on our theoretical framework we argue that this is not dependent on individual norms and values, but inherent in juridical doxa and how it is taught and practiced. By habituating traditional ways of doing core legal values of objectivity, rationality and autonomy, legal professionals conserve and reproduce a privileged male “neutral” gaze on the world and human interactions. This is an obstacle to a far-sighted and legally secure implementation of the new law. The enactment of core legal values as both disembodied and disembedded and above all as un-emotional further hinders open and collegial reflexivity on how legal practice can learn and evolve with critical perspectives on equality and diversity without compromising the rule of law. Meanwhile, the results also show that the rape law forges internal debate and reflexivity, legitimizes tentative adaptations of professional roles, and opens alternative methods of legal evaluation.
New research
The project generated the research project Autonomy of the judge in theory and practice (2023-2026, PI Moa Bladini), a doctoral project exploring the socio-historical development of Swedish rape legislation, financed by Brottsoffermydigheten, and the Nordic Himpathy Network, financed by Nordic Research Council for Criminology (Coordinator Sara Uhnoo). Two project applications aiming to study the influence and dynamics of intersectional positions of defendants and complainants were recently submitted to research funders.
Dissemination (excl. publications)
Results were presented at 15 international academic conferences and seven invited seminars at national and international universities. By teaching at the law departments of Karlstad and Gothenburg, and criminology and sociology at GU, the results reach students. The project had two student interns. Two master projects in criminology, one in sociology, and two in law were supervised on questions related to the project. Results were communicated to a non-academic public via podcasts and other media, and newspaper interviews. Workshops will be offered to legal professionals when the book is published.
The aim was to study legal implementation of the consent-based rape law and its requirement of voluntariness from a combined feminist and emotion-sociological perspective, an original approach to study the legal handling of rape. Through interviews and observations of rape case trials, the project inquired how legal professionals feel and think about the law, how they do the law in practice, and how written judgements render the motivation of the verdict. The Swedish implementation of the law was approached as a case of 1. challenging core legal values of rationality, autonomy and objectivity, and 2. how modern legal systems translate evolving social norms about gender and sexuality into legal practice.
The project achieved its aim and generated new knowledge, contributing to both the research fields and to legal practice, as reflected by the already received legal professional interest, and the praise from double-blind international reviewers of publications. A research monograph is scheduled for release June 2025. The draft manuscript returned the following comment from the anonymous expert reviewer: “This is a unique book that delves into details that are not often treated with such empirical rigour and theoretical creativity and it makes a clear contribution to the field. It engages with the international recent scholarship and gives a contribution to this I find to be highly interesting and inspiring. This is a contribution of high quality and relevance to both society and scholarship.”
Implementation
Data collection began, after approval of the Swedish Ethical Review Authority, June 2020 (Dnr. 2020-02205) and ended in spring 2022. Recruitment was initialised by presenting the project at four strategically selected district courts and two appeals courts, and thereafter based on self-selection and snowballing. We followed 18 rape cases and made 58 audio-recorded in-depth interviews with the involved legal professionals, and an additional four focus group interviews with female and male lawyers respectively, and mixed appeals court judges and district court judges respectively (in total 23 judges, 15 prosecutors and 24 defence lawyers/victim counsels). The gender ratio was 42% men. For all 18 cases we observed and took field notes of the trials, collected indictments, judgements and appeals. In five cases we were allowed to observe Appeals and District Court deliberations, and in two cases we followed the preliminary investigation. All the data was analysed in the qualitative data program ATLAS.ti, in several rounds of abductive coding. The final round of coding was made during a one month stay as Visiting Group financed by Bielefeld Zentrum für Interdisziplinäre Forschung in November 2023.
Main findings
1. The implementation of the consent-based rape law is marked by uncertainty. Judges were often uncertain about the evidentiary requirements and the evaluation of evidence, while prosecutors and lawyers (victim counsels and defense lawyers) failed to see a consistent pattern in how different judges interpret and apply the law. The results demonstrate that the law requires adaptation of professional roles, of legal evaluation and interpretation, and consequently it demands enhanced critical reflexivity regarding enactment of core legal values. To make an objective assessment of both parties’ stories, empathic imagination is needed, grasping “the situation as a whole” (as stipulated in the preparatory works) and how relational bonds and circumstances orient situated action rationality. Skilled defense lawyers demonstrated a high degree of role adaptation in this regard and put much energy into negotiating empathy for their clients. Prosecutors were usually content to ‘present the evidence’ and rely on judges’ expertise to evaluate it. Judges, however, requested that prosecutors take a more active role in explaining the meaning of the evidence. While a crucial task of the prosecutor is to encode an event into legal terminology, in rape cases there is additional need for empathic encoding. Some victim counsels took an active role as advocator, negotiating empathy for the complainant and focusing on the responsibility and action rationality of the defendant. This achieved a more equal balance between the parties in the courtroom but also highlighted the integrity-breaching aspects of the rape trial, which have been normalised when directed solely at the complainant.
2. There is a need for legal professional training in the competency of evaluating stories, that is, in systematic analysis of qualitative evidence (stories). Traditional legal encoding and evaluation obfuscate the complex interpretive process of applying juridical theory to ‘reality’ and favors ‘hard’ (technical) evidence which appears to be “objective”. The rape law centers the complainant’s story as main evidence, upsetting habituated ways of doing objectivity. While legal professionals also emphasize the need for supporting evidence, its significance depends on the story. If the story is found to lack credibility, the requirements on supporting evidence increase. The findings suggest that credibility is “a feeling” but bits and pieces of supporting evidence were used as “objectivity life buoys” in production of legal reasoning. Similarly, “the feeling” of a (in-)credible complainant story was objectified by using “credibility criteria” issued by the High Court. These have been criticized by psychological research and some have therefore been withdrawn by the Supreme Court. Nevertheless, several criteria - including the “character of lived experience” - were present in almost all judgements. The study also found that judges drew on personal experience and various types of ‘common sense’ in their judgements. This includes ‘legal logic’ and its routine labelling of evidence in rape cases as ‘bad’. Thus, there is a lack of understanding and a methodology for evaluating qualitative evidence.
3. The study confirms previous research findings that, while rape myths and sexual stereotypes evolve, lingering perceptions tied to a traditional privileged male perspective on sex and sexuality are inherent in how modern law is taught and practiced. The results above are thus representative of both women and men legal professionals. However, the study showed that “female” alongside “male” common sense fits within the legal logic of the new rape law, opening the way for the evolution of the legal system. For example, the law aims to place the responsibility for reciprocity on the active party and thus reduce the focus on the complainant’s behavior. When this was applied, stereotypes such as male ‘unstoppable’ sexuality appeared irrational, and less time was spent examining the complainant’s expressions of (un)voluntariness. The strongest pattern, however, was that judges allowed the defense to avert focus from their client to the complainant, who was portrayed as either a deliberate liar or someone naively misled by well-meaning friends and relatives. The positioning of the complainant as a potential liar is a starting point in the legal process, legally coded as an “alternative hypothesis”, which justifies the scrutiny of the complainant's story even after it has been found credible enough to proceed to prosecution.
The Swedish consent-based rape law, while aiming to push sexual norms in society at large towards increased sexual equality and mutual respect for bodily integrity, is obstructed by the norms of legal practice. Traditional stereotypes of male sexual initiative and female vengefulness are deeply embedded in the legal system. Drawing on our theoretical framework we argue that this is not dependent on individual norms and values, but inherent in juridical doxa and how it is taught and practiced. By habituating traditional ways of doing core legal values of objectivity, rationality and autonomy, legal professionals conserve and reproduce a privileged male “neutral” gaze on the world and human interactions. This is an obstacle to a far-sighted and legally secure implementation of the new law. The enactment of core legal values as both disembodied and disembedded and above all as un-emotional further hinders open and collegial reflexivity on how legal practice can learn and evolve with critical perspectives on equality and diversity without compromising the rule of law. Meanwhile, the results also show that the rape law forges internal debate and reflexivity, legitimizes tentative adaptations of professional roles, and opens alternative methods of legal evaluation.
New research
The project generated the research project Autonomy of the judge in theory and practice (2023-2026, PI Moa Bladini), a doctoral project exploring the socio-historical development of Swedish rape legislation, financed by Brottsoffermydigheten, and the Nordic Himpathy Network, financed by Nordic Research Council for Criminology (Coordinator Sara Uhnoo). Two project applications aiming to study the influence and dynamics of intersectional positions of defendants and complainants were recently submitted to research funders.
Dissemination (excl. publications)
Results were presented at 15 international academic conferences and seven invited seminars at national and international universities. By teaching at the law departments of Karlstad and Gothenburg, and criminology and sociology at GU, the results reach students. The project had two student interns. Two master projects in criminology, one in sociology, and two in law were supervised on questions related to the project. Results were communicated to a non-academic public via podcasts and other media, and newspaper interviews. Workshops will be offered to legal professionals when the book is published.