On July 1, 2018 Sweden’s new law on rape came into force. Under the new law a person is guilty of rape “who, with a person who is not participating freely, has sexual intercourse.” This is an opportunity to consider the controversial nature of the new laws, since these are being implemented in many western countries.
On the face of it this is similar to a law enacted in Ireland in 2017.
But there appears to be more in the Irish law in that it has a clause:
(4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.
Which is close to if not identical with the notion of Affirmative Consent, a controversial concept which has been gaining ground rapidly across North America and Europe.
The devil is in the detail, but the detail is not spelled out at any rate in Ireland’s case. What of course was required during the legislative stage but was not forthcoming here was a vigorous, robust questioning of the meaning of the statute and a teasing out of the potentialities inherent in it. Our craven political class subservient as usual in the face of a bullying feminist lobby, failed entirely to do this. In their absence it was up to the media and/or academia to scrutinise in fine detail the meaning. But the media is utterly servile, toadies up to the same lobby and may even subscribe to the same ideology. Academic voices have been absent from these issues for a long time.
As a result, the bill was enacted without a murmur. At least in Sweden there was some discussion about the law.
A Library of Congress article of July 3 2018 comments:The new law which the Swedish PM declared to be absolutely clear is anything but according to critics. The government has justified the legislation by arguing that it will set an example and clarify that every human has an unconditional right to personal and sexual integrity and sexual self-determination. As a measure of the vagueness involved one such issue is:
Silent Consent
Under the new provisions, intercourse stemming from silent consent is not automatically rape. However, silent consent needs to be corroborated by additional evidence. The situation must be viewed in its totality to determine whether silent consent was given.
Comment: What if the woman gives a nod, a meaningful glance? This does not appear to be enough here.
There is a separate offence of Negligent Rape. Judges argue that the difficult part in adjudicating sexual crimes is determining the intent of the accused, which, according to the new law, means whether the accused was aware that he or she lacked consent. In response to this difficulty, the new law provides for liability and prison sentences for perpetrators convicted of being grossly negligent in obtaining the needed consent. The test as described in the final bill is whether the person could and did do all the things necessary to determine whether consent was actually received.
Comment:The concept of ‘negligent rape’ appears to shift the burden of proof from the alleged victim onto the alleged perpetrator, that is, it makes sex akin to a strict liability offence which can be defended only by proving that consent was granted, because some risk of misunderstanding is always present.
Another article states:
The Swedish Prime Minister Stefan Löfven previously attempted to clarify the meaning of the proposed legislation by stating that you should not engage in sex unless you are sure that consent had been granted – “If you are unsure, then refrain!”
As one commentator put it: As with other ‘Yes means Yes’ initiatives, at any trial it will now fall on those accused of rape to prove that their actions were welcomed by their partner, rather than on the accuser to show that they did not consent – which Lofven said will “put the victims’ interests first.”
Standing next to the PM, Justice Minister Morgan Johansson said that the line on what constitutes a sufficient show of consent will be decided on a “case-by-case” basis but added that he “expects the number of rape convictions to rise.”
Johansson openly declared that the law, was launched as a purposeful “signal to Sweden’s men and boys.”
“If men’s violence against women is to cease, it’s the men who have to change.”
The language here, particularly the phrase “violence against women” is standard extreme feminist terminology. Sending a message to men and boys has also become standard practice in new legislation and indicates the decidedly non-neutral stance of the Justice Minister.
How, precisely, exactly, do you know when there is consent? Does it need to occur at each step (as it now does in Canada)? What, precisely, is a step?
Criticism
There has been criticism in Sweden: Referral Response from Anne Ramberg, President of the Swedish Bar Association [Sveriges Advokatsamfund], to Swedish Department of Justice (R-2016-2094, Jan. 27, 2017).) The criticism centers around two issues: it will be difficult to prove whether consent has been given (word against word) and, because it is unclear from the legal text, difficult to determine what specific acts would be punishable.
Further criticism from the Council for Legislation:
The Swedish Council on Legislation, an independent body made up of current and former Justices from the Supreme Court and Supreme Administrative Court that tests the constitutionality of proposed legislation, has criticized the law for not being predictable, arguing that predetermining what actions will be punishable cannot be done with sufficient accuracy. The Council on Legislation therefore advised against the proposed changes.
Swedish lawmakers deny that the burden of proof is shifted from the accuser onto the accused, but this denial, even if well intentioned, may be misleading.
If there is a dispute that the alleged victim was not participating voluntarily (this could apply if explicit consent were not given at every step of the encounter) and the complainant is prepared to testify under oath that consent was not given, this is an unreasonably low standard of proof for demonstrating culpability of the accused for rape. It amounts to an automatic transfer of the burden of proof from the accuser onto the accused on the basis of a mere accusation of non-consensual sex, whereupon the accused is faced with a nearly impossible task of proving that consent was in fact given, or that the risk of misunderstanding about consent was too low to trigger the obligation to refrain from engaging in the sexual encounter.
Affirmative Consent
Affirmative Consent has been introduced in California on university campuses. This seems to require not just consent at the outset but consent at each step of the sexual encounter. What this means is of course anyone’s guess. It clearly puts the woman in a powerful position while the man is left completely unsure of where he is at each stage and even afterward.
Jordan Peterson has commented: How, precisely, exactly, do you know when there is consent? Does it need to occur at each step (as it now does in Canada)? What, precisely, is a step?
According to Time Jan. 17, 2018:
Affirmative consent stipulates that partners must explicitly agree to engage in sex, consent can be withdrawn at any time during an encounter and “silence or lack of resistance” does not imply consent, according to State University of New York’s definition, which is consistent with other definitions. It also says that a person cannot consent while intoxicated and that partners must consent every time a sexual encounter occurs, regardless of whether they’ve consented to a particular type of behaviour in the past.
Critics say affirmative consent, when coded in laws and policies, makes it difficult for people accused of sexual assault to get due process because it could broaden the definition of sexual assault to include any form of sexual contact that wasn’t explicitly approved with affirmative consent.
Comment: As a measure of the muddle surrounding this Time goes on to say:
Every state has a different definition for consent. Some states, like Florida, Illinois and California, have definitions of consent that align with affirmative consent, according to RAINN’s state law database. Other states, like Missouri, Michigan, Idaho and Louisiana, don’t specifically define consent.
K.C. Johnson and Stuart Taylor Jr., the authors of the 2017 book The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, criticized states for adopting “yes mean yes” laws in a January 2017 op-ed for the Washington Post, arguing that affirmative consent standards were one of several policies at colleges that stripped the accused of their rights.
“These states’ laws now have enormous inconsistencies between their definitions of sexual assault for campus tribunals and for criminal courts,” Johnson and Taylor wrote. “In the former, an accused student must prove that he obtained ‘affirmative consent’ throughout every sexual encounter, even with a long-time partner. This standard ‘is flawed and untenable if due process is to be afforded to the accused,’ a Tennessee state judge has ruled.”
The only way a man today can be sure that he is acting correctly is by getting a legal document drawn up signed by both parties
A Legal Contract for Sex
A number of prominent people, the latest being the American writer Lionel Shriver, have commented that the only way a man today can be sure when engaging in sexual intercourse, that he is acting correctly is by getting a legal document drawn up signed by both parties with agreement clearly detailed. Imagine the scene. Calling a lawyer while in bed and waiting for the document to be finalised and signed. By that time the libido has well and truly vanished.
As another indication that this is the only sure-proof line to take, here is what an enterprising lawyer has done:
Creation of a New App
One Swedish lawyer has developed a smartphone app that persons could use to log in and with their national Bank-ID confirm that they are engaging in voluntary sexual relations. She argues that the use of the app will make sexual partners more careful in considering whether they want to engage in sexual relations with the specific person. (Stefan Wahlberg, Nu kan du signera digitalt innan du har sex – advokaten har tagit fram en samtyckesapp [Now You Can Sign Digitally Before You Have Sex – Lawyer Produces Consent Application], DAGENS JURIDIK (June 26, 2018).) What bearing the app would have on proving consent in court is unclear.
When one considers that conviction for rape in Ireland now carries an average prison sentence of ten years, it is essential that the law be absolutely clear.
Radical Feminism is well on the way to achieving its real aim which is to destroy normal sexual relations between heterosexual couples; an aim motivated by its pathological hatred of that act and clearly seen in the writings of Andrea Dworkin, Catherine McKinnon and others. The most natural human behaviour (sex) is thus implicitly criminalised.
Uncertainties about practical application of the proposed consent obligation are likely to create a lot of frustration and sexual stress for both male and female partners in healthy, normal and consensual sexual partnerships. One unintended consequence of the new legislation will be that of providing every disgruntled or rejected former partner (female or male) with a means to exact revenge for any kind of grievance, simply by declaring that non-consensual sex took place at any time during the relationship. Trying to prove explicit consent or a negligible risk of misunderstanding about consent in every past sexual encounter may be an impossible challenge even for the most diligent of lovers.