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Sammanfattning

This essay investigates whether the law or its practice can be said to impose on the plaintiff a responsibility in relation to the defendant’s intent or negli-gence regarding the plaintiff’s involuntary partaking in a sexual act with the defendant. We are hence located in the first two paragraphs of the sixth chap-ter in the Swedish criminal code, 6:1 and 6:1 a Brottsbalk (1962:700). My essay does however not primarily revolve around the current legal regulation on the matter, but around its implementation by “hovrätterna”. Why? The title of my essay mirrors an ambiguity which I mean has arisen by reason of NJA 2022 s. 237. This ambiguity regards whose actions, those of the plaintiff or of the defendant, are legally deemed to determine the assessment of whether the defendant can be said to have realized or suspected that the plaintiff did not out of free will participate in the sexual act in question. HD’s assessment in the stated verdict gives expression to an idea of the current legal situation which I fail to find legal support for. According to this idea the plaintiff’s clearly manifested reluctance constitutes a prerequisite to the defendant’s knowledge or suspicion of the plaintiff’s involuntary participation in a sexual invite or act performed by the defendant. In order to better understand what I thus conceive of as a difference between the implementation of the law and the law itself I have chosen to examine if a similar idea exists within the legal im-plementation of “hovrätterna”. My investigation has resulted first of all in the conclusion that the plaintiff does not have a responsibility to clearly manifest their reluctance in relation to a sexual invitation or act performed by the de-fendant in order for it to be estimated that the defendant has known or sus-pected their involuntary participation therein. Second of all it seems that the analyzed practice from “hovrätterna” gives expression to an idea rather oppo-site to that of the HD. According to this idea the plaintiff can, in line with the laws bidding, react however they please without this reaction hindering the insight, and thereby intent or negligance, of the defendant.