Förra veckan blev jag kontaktad av en journalist från den den argentinska tidningen Página/12 som ville ställa lite frågor om samtyckeslagstiftningen. Min första reaktion? Ptja. Kom aldrig och säg att jag inte erbjuder ärliga disclaimers.
Lyckligtvis hade hon redan pratat med någon som var positivt inställd, och ville ha lite invändningar. Så det fick hon. Artikeln i sin helhet finns här, men för er som gärna slipper läsa spanska så lägger jag upp mina svar i sin engelska ursprungsform.
- How is the implementation going to be?
No one really knows, it seems. The preparatory work doesn’t give a lot of guidance on the matter. Which is a problem, given that the swedish legal system is largely based on those guidelines (unlike, say, anglo-saxon law which is based rather on argumentation).
- How are women going to make their consent explicit?
This isn’t defined in the legislative proposal at all. The case is still that you can give consent in any way or form you want. Through words, actions or “otherwise”.
- How will the judges investigate whether or not there was consent?
Also not explicitly stated. The idea is that you will be able to hand out a legal punishment based on things like negligence, if the accused party can’t prove that they truly tried to make sure whether consent existed. But there are no examples of how that would be implemented or tested in any way different from before.
- What critiques has the project received?
Only one out of five actual lawyers/attorneys supported the change. Three out of four crime lawyers are actually *opposed to it*, according to a poll conducted by a jurist’s industry magazine. Even the swedish Council of Legislation criticised it for being too vague.
A big chunk of the criticism has been based on the fact that it’s purely a cosmetic change made as political statement, a concession to a rather loud lobby group. We already had a law against sexual assault and rape that was based on consent, and the difficulties in finding out which party’s version is closest to the truth is still going to be an issue.
Another critique has been that the only way to *actually implement it* involves moving the burden of proof to the victim, as they suddenly have to prove that they didn’t give consent. This means that the victim might get excessively intrusive questions as part of the trial. Instead of focusing on the perpetrator, courts are given the normative power to decide whether the actions were made out of whatever their definition of “free will” might be.
A legal process is supposed to be a dialogue in which evidence is presented, and when you instead start focusing on some kind of normative (and likely, subjective) concept of freedom that might apply to the victim, you lose focus on the perpetrator’s actions and intent. Instead of the discussion being about violence or coercion, you move the conflict to whether consent was given and whether it was given out of free will. Obviously, this is going to present some problems with the rule of law.
- What debates have there been since its approval?
Basically none, which is a bit scary to me. A few feminist lobby groups that were loudly praising and pushing for the legislation change have gone very silent since it was accepted and other women and feminists started criticising it. Sure, it might have some normative power, but honestly I would like to hear from them how they envision it being actually used beyond (admittedly lovely) words about consent and respect.