Frivilligt deltagande och rätten till sexuellt självbestämmande - en analys av den svenska sexualbrottslagstiftningens hantering av vilseledande i sexuella relationer

Sammanfattning

In the preparatory works, it is asserted by the legislator that the purpose of the Swedish criminalization of sexual crimes is to protect the right to sexual self-determination and sexual integrity. While the statements made in the Swedish preparatory works refers to sexual self-determination, this concept is regarded as synonymous with, or dependent upon, sexual autonomy. Under Swedish law, this right is safeguarded by drawing the line between criminal and non-criminal sexual acts based on whether participation was voluntarily. In other legal systems with similar protective aims, the decisive question asked is instead whether both parties consented to the sexual action. A key difference between these criteria is that consent requires both parties to have insight into relevant circumstances. Deception regarding such circumstances may therefore vitiate consent. Since full insight into relevant circumstances is not required an individual’s participa-tion to be considered voluntary in Swedish law, fewer forms of deception are criminalized. Given that the underlying aim both of Swedish law, as well as other comparable legal systems, is to protect sexual self-determination or sexual autonomy, the question arises whether the Swedish legislations more restrictive treatment of deception is normatively justified. The thesis therefore examines the extent to which a criterion based on voluntary participation effectively protects the right to sexual self-determination. The thesis employs a critical legal dogmatic method, analyzing the law in light of its underlying purpose to determine whether the criterion of voluntary participation is unsatisfactory, or in need of a change. The result indicates that the line drawn by the criterion of voluntary participation is largely consistent with a liberal conception of sexual autonomy. By contrast, the relational model of sexual autonomy aligns less well with the Swedish approach, although it remains unclear within the scope of the essay if a consent-based law would differ in this aspect. Overall, Swedish law’s criteria of voluntary participation can therefore be considered to provide an adequate level of protection for the right to sexual determination.