Explicit Consent! Swedish Sex Bill and the Pseudo-Politics of Awareness Raising

Following the #metoo moral outrage, even governments jumped on the wave of awareness raising – awareness not of the problem, but of the idea that the governments care for the problem. The proposed revision of the Swedish sexual assault law is precisely that, a public stunt of the government to show that they care, and nothing else. It is pseudo-politics at its purest. A closer look at the proposal reveals that nothing substantial actually changes. The burden of proof remains the same, after all, one cannot send people in jail without sufficient proof, irrespective of the extent one stretches the definition of rape. Media inflated the discussion about a supposed paragraph that would demand one to consent verbally or physically at every ‘new’ instance within a sexual act. The fact is, the government expressed itself against such a legal change. The document of the Council on Legislation sums up the government’s position as follows: ‘There should not be a requirement in the legislative text that the choice to engage voluntarily must be expressed’1 (p. 29).

The committee that came up with the proposal has repeatedly argued for the need to change the law in order to ‘send a normative message’ that an involuntary sexual act is unacceptable ‘and thus change human behaviour’ (p. 22) and to ‘strengthen and clarify every human’s absolute right to personal and sexual integrity and self-determination’ (p. 16). This already tells us that the legal change is intended primarily as a deterrent. This is implicit also in the silly statement of the Swedish Prime Minister who said that ‘It is clear that men do not know that sex should be voluntary.’2 But do such men even exist? Everyone who rapes and sexually abuses another human being knows exactly what he or she is doing. Petter Eide, a politician of the Socialist Left Party of Norway (SV), who has now also proposed his version of the Swedish bill, has put it even more clearly in a TV debate, when he stated that ‘the intention of this law is to tell men that one has to be very explicit, sexual acts have to be consensual and voluntary (…) this law should function in a preventive way because it removes grey areas (…) now the man will know that if it is not voluntary or consensual, it is rape, so it is a clear message to the man.’3 Alas, the burden of proof does not change. We must resist this apolitical tendency to assume that lack of knowledge is the real problem and that the solution is to engage in further media outrages such as #metoo – and put them into law. Putting ‘lack of consent’ at the centre of the law comes also under the pressure of the UN Committee on the Elimination of Discrimination against Women (CEDAW) that criticized Norway already in 2012 for its ‘lax’ rape laws.

As several critics pointed out, it is very unclear what exactly changes in practice. Proving rape will require, as Eide also pointed out, same demand for proof and same police work. We are thus left with signalling pseudo-politics. The point agreed upon on by all parties is the principle that all sexual activity must be voluntary, otherwise, it is illegal. How this new definition differs from the reverse definition of the same – coercion, threat or action under ‘a particularly vulnerable situation’ – is unclear. The agreement is also on criminalization of sexual abuse irrespective of it being committed intentionally or out of negligence (p. 23), i.e. one can now be accused of negligent rape of another person even though one believes one is not committing a rape – one is thus required to make sure that the other party agrees. While the law typically presumed the existence of rational individuals, it now favours the notion of the irrational affect driven creature lacking in basic knowledge and judgement. Men who do not know, meet women who do not know how to say no – a brave new world.

In Norway, the inclusion of a ‘negligent rape’ since 2000, has acted often enough in favour of the accused, the burden of proof being the same, but if convicted, the offender could get away with a lower sentence. In effect, it did not produce more convictions, but instead lesser punishments. This is another reason to resist this legal definition. Even in clear cases of violent rape, charges amounted merely to rape out of negligence. One thing must be emphasized again, sex that is not voluntary is already prohibited. The last thing we need: laws that make it harder to convict people for serious sexual assaults.

Expanding the definition of rape has also another lovely function, as we can observe each time the statistics shows an increase in sexual assaults: this increase can always be explained away precisely by the expansion of the definition (and each of the previous laws has been doing exactly that). The unpleasant statistics can thus be dismissed as a result of increased awareness about the definition of rape having nothing whatsoever to do with increase in actual harm.

The proposed bill is intended solely to please the masses and boost the image of Sweden as a progressive haven of justice and care, nothing else. We must not ignore in which context this proposal arises. Reports of underfunded Swedish police, lacking manpower as well as finances and overwhelmed with violent crime, have been increasingly prominent in the media over the last few years. The rates of rape cases leading to prosecution have been falling – in 2014, 20% cases were solved, in 2015, 14 %, in 2016, mere 11%. Swedish police say violent crime units must prioritize murder, attempted murder and kidnappings, which has been on rise due to the increase in gang violence, over sexual violence.4 Reports of many other crimes left unsolved or even never investigated due to the lack of resources proliferate across the media. In response, trust in Swedish police decreases. It is this societal mood, the bill is trying to fight, not the sex offenders.

Few days ago, three men were exonerated in Sweden after being accused of gang-rape of a 30 years old women –even though she has been beaten unconscious, sperm of all three has been detected and they were detained based on a DNA analysis; they were already known to the system due to earlier drug and violence related charges. The reason for their exoneration: police did not investigate the case correctly and the police investigation is now being inspected by the ombudsman; on top of this, the victim was deemed not sufficiently credible as she was not the perfect middle class victim, but a woman of lower social status with drug problems. Reports about women whose rape cases have been completely ignored by the police, or have been left untouched for weeks even when the offender was known to the police, such as in the case of the rape of a 12 years old girl in Stenungsund, are equally common in Swedish media.

None of these real problems can be solved by expanding the legal definition of rape and raising awareness. Policemen are reported as leaving the police force in increasing number for better paid jobs in private companies; 9 out of 10 are unhappy with their salary and 32% work overtime to survive economically.5 At the same time, it is becoming harder to recruit new police force; even though the criteria for entrance examinations in the Swedish police academy have been significantly lowered, still, in 2017 only 649 qualified for the 800 free spaces – out of 8000. Understaffed and underpaid police force facing increasing levels of violent crime is the real problem behind unsolved cases of sexual abuse. This yet again reveals the new law as an act of virtue-signalling pseudo-politics.

Truly progressive politics would deal with the real causes of the increasing violent crime, it would deal with the reasons behind the proliferation of gangs, it would address the rising inequality, loss of future perspectives and disillusionment of the population; it would invest in neglected neighbourhoods. Police force alone, even if it indeed requires more resources to deal with existing crimes, is never the solution. This awareness raising law that does nothing but sending a ‘message to men.’ This law infantilizes all men including the offenders (the same job #metoo did for women), who we must insist are adults who know fully well what they do when they do it. This law also does absolutely nothing to either prevent or make it easier to solve sexual assaults – to the contrary. Supporting this law will not make you a more ethical and better human being. At best, it will make you a condescending virtue-signaller without any interest in addressing the really crucial issues.

By Tereza Kuldova & Robert Pfaller, Adults for Adults

Tereza Kuldova, PhD, is a social anthropologist and Researcher based at the University of Oslo and University of Vienna. @Tereza_Kuldova 

Robert Pfaller, PhD, is a Professor of Philosophy and Cultural Theory at the Linz University of Art and Industrial Design, Austria. @PfallerR

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