EDITORIAL • The Södertörn District Court’s condom verdict raises not only questions about the length of the sentence. It exposes a more fundamental problem – that today’s criminal law lacks its own concept for violations of sexual conditions.

The much-discussed judgment from the Södertörn District Court has sparked a lively debate. A 44-year-old man was sentenced to three years in prison for rape after having sex with a woman without a condom, contrary to her explicit requirement.

The reactions have been strong. For some, the verdict is a self-evident consequence of the consent law. For others, it is hard to understand how otherwise consensual intercourse can lead to the same legal classification and minimum sentence as acts traditionally associated with rape, where there is no consent to sex at all.

But the most interesting question is not primarily whether the court ruled correctly based on the letter of the current law. Instead, it is whether the law has the right concept for the kind of violation that actually occurred. That is an important distinction.

The Court May Have Done What the Law Requires

There is nothing in the verdict to suggest that the court consciously stretched the law or tried to create new precedent. On the contrary, the court’s reasoning seems consistent based on the premises given.

According to the district court, the woman was clear that she accepted vaginal intercourse only on the condition that the man used a condom. The man understood this but still had intercourse without a condom.

Therefore, the court considered that voluntariness was lacking in the sense referred to in the consent legislation. At least as the law has been interpreted – the district court refers to several previous cases which, they argue, confirm that this is how the text should be read.

Consent to sex with a condom is not consent to sex without a condom. And thus the consent in its entirety collapses, not just the part concerning the condom, and a consensual act overnight becomes classified as rape, in a way that could be seen as lacking nuance, even unreasonable if the difference is three years in prison.

There is no reason to question the woman’s right to set such a condition. The right to sexual self-determination is precisely the right to decide under what conditions one wishes to engage in sexual activity. For example, with or without a condom.

The man’s behavior in not respecting that requirement is also not defensible. If the court’s assessment is correct, he chose to disregard a condition he understood or should at least have understood was important to the woman’s consent. That is not where the problem lies.

A Yes Can Include Conditions

The consent law meant a significant shift in perspective. Previously, the focus was often on whether violence or threats had occurred. The amendment moved the focus to voluntariness. That was a fundamentally well-motivated change. Sex should be based on consent, not resistance.

But the law’s construction has also had negative consequences that have not been sufficiently discussed. There hasn’t been a lack of criticism, nor stories of men sacrificed on the altar of the consent law with low evidentiary requirements. But this criticism and these stories are not taken seriously by the consent-fundamentalist establishment and the matriarchy of misandrist feminists who have seized power over this debate.

The consent law is based on a binary view. Either there is voluntariness. Or there isn’t. In the current case, the binary order becomes problematic.

The woman consented to meeting. She consented to kisses and other sexual activity. She consented to penetration. What she did not consent to was penetration without a condom.

Yet the violation of that condition, which after all is a minor part in the context, leads to the entire sexual act being legally treated as if consent was lacking. The absence of a condom turns consent into rape.

The Same Right – Different Dimensions

Sexual autonomy is not a binary yes-or-no question. It consists of several dimensions in which some aspects reasonably can be regarded as having greater importance than others. One concerns the right to decide whether to participate in a sexual act at all.

The other concerns the right to determine under what conditions the sexual act takes place. The difference between “if” and “how” can be small, but it can also be significant.

One may want to have sex but only if certain boundaries about the act are respected. For example, one can say no to anal sex or being tied up and whipped. One can also make sex conditional on the use of a condom.

All conditions should, of course, be respected, but as with all other crimes, there is a scale of seriousness. I think most would agree that it is somewhat more serious to tie up and whip a woman against her will than, in the heat of passion, to not reach over for and put on that condom lying in its package on the nightstand during foreplay.

To make the point even clearer: One could also choose to give consent to sex only if the lights are off or if the bedsheets are 100 percent cotton. Not quite the same, but anyone should see there’s a slippery slope along which the boundary between consent and rape may slide. Turn on the bedside lamp during the act and suddenly it’s rape. If the woman spots the sheet’s washing label and reads “50% polyester” – it’s rape.

Rape Is Not a Word to Be Devalued

Not every condition that can be set for sexual consent is, if broken, a direct violation of a woman’s physical integrity. It is still a violation but of something else. We thus have a quantitative but also a qualitative difference that the consent law, as currently written and interpreted, does not capture.

Everything that is not consent should not automatically be rape. More should count than before the consent law was passed, but rape is a serious crime whose meaning should not be diluted. No raped woman gains if public trust in the consent law is eroded, if men serve years in prison for things that public consciousness does not consider to be rape.

Leaving the condom on the nightstand when the woman expressed a preference otherwise is a violation of her sexual self-determination – but of different aspects of it. When an explicit condition is set aside, there is indisputably an integrity violation. The question is, however, whether that violation is always of the same nature as when a woman never wanted to participate in the sexual act at all but is subjected to it anyway.

A Left-Feminist Creation

When I wrote “most would agree” above, it wasn’t only a rhetorical cover-all. One should be clear that the consent law originated in left-wing and radical feminist movements, some of which are directly misandrist and man-hating, Roks among them, known for statements like “men are animals.”

It is voices from this red undergrowth who have asserted the right to interpret in the public debate after the consent law was introduced and, for self-serving reasons, dismissed all criticism. Three years in prison for a condom and young men convicted of rape without any evidence, where word is against word, are collateral damage in these circles.

This is a stark contrast to how it sounded before the consent law when strange verdicts in the other direction were handed down in rape cases – notably one where three men with foreign backgrounds were acquitted after raping a woman with a bottle so that she bled from the genitals while the assault was filmed.

Risky to Scrutinize

It is not without risk to critically examine the consent law. Almost automatically, one is turned into the straw man of a male chauvinist who trivializes the woman’s experience or her right to set boundaries – a “Taliban,” as former Left Party and Feminist Initiative leader Gudrun Schyman called all men when she championed the consent law.

In that climate, it is difficult to have a nuanced discussion. Hardest of all is to get acceptance for the idea that a consent law and a rape concept that loses anchor in public opinion not only harms innocent men but ultimately also erodes society’s protection of women’s sexual integrity.

Before the law was enacted, criticism was expressed by heavyweights such as the Council on Legislation and the Swedish Bar Association. Legal certainty could not be guaranteed and it was impossible to know in advance what was criminal, they said. Radical feminist group Fatta, instrumental for the consent law, was exposed for lying about rape statistics and lobbying operations targeting lay judges in sexual offense cases.

A Porn- and SD-Hating Criminal Law Professor

The perhaps leading advocate behind the consent law, criminal law professor Madeleine Leijonhufvud, now deceased, also fought for a total ban on all pornography. She also, as chair of the union Jusek, sanctioned professional bans for Sweden Democrats. To be fair, she took a more tolerant stance on other issues, like same-sex adoption and in opposition to former Chancellor of Justice and, as it turned out, nutcase Göran Lambertz.

In politics, the Left Party and the Green Party led the way for the introduction of a consent law. Other parties joined in over time, but even when the law was passed in 2018, the Moderates and Sweden Democrats pressed the Yes button with clear reservations. That didn’t stop the controversial Social Democratic profile Annika Strandhäll, then Minister for Social Affairs, from going public on social media and lying that SD had voted No.

Since then, the Moderates have backed down and actively participated in the bashing of Sweden Democrats when the party this year voted No to an EU-wide consent law, citing that the Swedish law lacks legal certainty. The Council on Legislation and the Bar Association have since found it safest to keep silent.

It is in that atmosphere that anyone sticking their neck out to argue that a woman’s sexual autonomy is indeed violated if a conditional condom is not put on, but that this violation may not be of the same kind as coerced intercourse, stands out.

Different Kinds of Violation

In a classic rape case, the victim is deprived of the right to decide whether sex should take place at all or to say no to specific sexual acts. In this case the situation was different. The court found that the woman wanted to have sex in the manner that occurred. Penetration did not, in itself, take place without consent, only without a condom.

The difference is not insignificant. The first situation is about disregard for the decision to participate, in a sex act at all or in specific activities. The second is disregard for a condition for participation in an act and activity to which the woman otherwise consented.

The latter can reasonably be seen as a different sort of violation than the former – not just quantitatively in seriousness, but qualitatively as well. There is therefore reason to ask whether both should be described with the same legal term.

Criminal Law Differentiates

The various legal classifications in the Criminal Code do not only indicate that an act is forbidden. They describe the kind of act and distinguish between them. Theft is a different crime from fraud, assault is different from unlawful threat.

All are violations against a person but of different types, and even if they are committed in a single incident against the same person, we keep track and distinguish what is what. In the same way, it is important to demarcate which acts reasonably should fit the legal term “rape.”

For a long time, the concept was mainly associated with forced sexual acts through violence or threat. The consent law changed the legal definition and marked that voluntariness, not violence, is the crucial dividing line.

That was a fundamental reform in theory, but perhaps not fully so in practice. For in parallel, the word “rape” has come to include a much wider range of situations than before. The question is whether a single concept is really precise enough to describe them all.

When the Law Becomes Too Binary

One of criminal law’s fundamental tasks is to distinguish between different grades and types of blameworthy acts. That is why the Criminal Code is full of nuances. We distinguish between petty theft and theft; between causing bodily harm and assault; between negligence and intent; between attempt and completed crime.

Criminal law is in most cases not binary. Not only is there within the same classification a distinction between minor, normal, and aggravated. Not only is there a scale of minimum and maximum penalties. There are also different classifications for similar but not equally serious crimes. Moreover, an act can be criminal in different ways.

In light of all this, the current rape verdict appears fundamentally problematic. The consent law does not distinguish what type of violation the woman suffered. Once the court established that the woman’s consent was conditional and that the man understood this, only two options remained.

Either he had committed rape. Or no crime had been committed at all. There was no middle ground. Nor were the elements for the lesser charges of negligent rape or negligent sexual assault fulfilled.

This makes the law’s construction and application unusually and unreasonably binary. It leaves very little room to describe situations where comprehensive consent was present but a condition was violated, regardless of how central or peripheral that condition is to the situation.

A Crime Without a Name

The discussion in the wake of this verdict should not be about the minimum sentence for rape, which in itself is reasonable, but about the fact that it is a classification, and thus punishment, which in the actual case is not equally reasonable.

If legislation offers only a single classification, the court’s ability to fine-tune the sentence is limited, at worst to a choice between the plague and cholera. In this case, it was between an unreasonable three years in prison and the equally unreasonable outcome of the man escaping all legal consequences for his actions.

Deliberately disregarding an explicit condition for another’s sexual consent is a sufficiently serious violation of that person’s autonomy to be criminal. But that does not mean it must be described with the same term as when someone coerces sex against another’s will. There is a gap in the legislation here.

The criminal code lacks a dedicated name for this kind of action. Therefore, the court’s options are binary and the subsequent debate risks being just as polarized. There’s no choice but to take one side or the other in the binary question of whether the man should have had three years in prison for rape or been acquitted.

Those who question the sentence risk being perceived as downplaying the woman’s right to decide over her body. Those who defend the penalty risk being seen as crudely lacking nuance – as if every violation of integrity, every breach of consent, regardless of kind and seriousness, is the same as rape.

The courts’ dilemma and the conflict in the debate are largely due to having to operate and debate within a system of concepts that is too coarse-grained, black-and-white, binary.

A Possible Next Step for the Legislator

It is of course easier to point out problems than to formulate better solutions. But here there really is an opportunity. If one does not want to expand the existing classifications of negligent rape and negligent sexual assault – though they were enacted at the same time as the consent law and might have been intended to capture situations like the present case.

The legislator could consider a specific crime classification for situations where an explicit condition is knowingly disregarded though there was otherwise consent to the sexual act. Especially if the condition in question is not a direct sexual act.

It is one thing if the violated condition is that nothing other than vaginal sex may occur and the man still penetrates the woman in another way. In such case, the classification rape may be reasonable.

It is another thing if no other sexual act than those consented to occurs, but a condition for those acts is disregarded. In the current case, the woman had given consent to vaginal sex. No other sex than that she had consented to took place, except for the condition that it be with a condom.

One can imagine other similar conditions that are not themselves sexual acts. That the man did not wash his genitals in connection with the act, as the woman required. That he uses grossly misogynistic language during sex when the woman said she does not accept it.

Whether lights-off and synthetic-free sheets should be included, as exemplified earlier in the text, is less certain. But it is clear there are conditions that can be set for sex, and if violated they should not immediately turn sex into rape.

Such a crime could be called “violation of sexual conditions.” Such a crime type could encompass situations where someone knowingly disregards explicit requirements, for example, condom use or other clearly articulated limits to consent.

The penalty range could give courts the opportunity to consider circumstances criminal law normally takes into account. How clear was the condition? How clear was the intent? What was the relationship between the parties? What risk or harm resulted? Were there mitigating or aggravating circumstances?

Svenska courts make such assessments every day in almost all other parts of the penal code. They also do so in sexual crimes. The problem arises when actions like condom use are absorbed into the crime of rape and the courts cannot impose a lighter sentence than three years in prison.

Legitimacy Is Also About Clarity

There is an additional aspect seldom discussed. Criminal law must not only be just. It must also be perceived as understandable.

This does not mean courts should judge by opinion polls. But legislators should ponder when a large part of the spontaneous debate is less about guilt than about the concept of the crime.

Many react not because they consider the man’s behavior acceptable, but because the word “rape” for them describes another type of offense than that which actually occurred in this case. Not necessarily involving violence, but still a bit more than an ignored condom.

This reaction may of course be due to the public not realizing how the consent law is structured. But it may also be because the law’s concepts no longer reflect the qualitative differences that people intuitively perceive between various types of sexual violations.

It’s an issue worth taking seriously. For the legitimacy of legislation rests not only on logical consistency. It also rests on whether people feel its categories and concepts correspond with reality in a reasonable way.

The Verdict Raises Questions That Need Answers

The current verdict will likely continue to be discussed. Perhaps the court of appeal will come to the same conclusion. Perhaps not. How the debate develops and what the legislator may have to consider will depend on that.

But regardless of the outcome in higher courts, the district court ruling signals that there is a serious problem with the consent law and the definition of the crime of rape. One could of course attribute this only to the specific panel of judges in the case, but that is contradicted by the judgment being based on previous cases.

In summary, it was in principle good that the focus shifted from violence and coercion to voluntariness as a boundary between legal and illegal sexual encounters. But influential institutions like the Council on Legislation and the Bar Association saw problems with the proposed solution, the consent law.

The objections were brushed aside. But the problems have not disappeared. The current judgment is not the only one that signals this. Samnytt has covered several other cases that provide reason to question the consent law in both its text and application. And what we have done is only scratch the surface.

But it is enough to show that the consent law leaves something essential to be desired in terms of both legal certainty and proportionality. It is high time this is addressed before trust in the law and the justice system is further eroded.