In Sweden, No Means No Unless He Doesn’t Think She Means it
Do you ever have one of those days where you wish you could transform into a rage fireball, turn the entire planet into a molten, smoldering hellscape, then move to the moon to live alone and in peace with your cat? Yeah, I’m having one of those days.
Why is living on a lonely wasteland preferable to the crowded lusciousness that is Earth? Oh, I don’t know. Maybe it’s the traffic, or the noise. Or maybe it’s a recent court decision out of Sweden that basically allows someone to get away with rape if that person didn’t realize the sex was unwanted – even if the victim was screaming their objections.
Here is what happened, as reported by the Swedish English-language news site, The Local: An unnamed man and women, who did not previously know each other, met at a restaurant. They went to his place and fooled around a little. However, when the man started to initiate sex, the woman said no. But he kept going. She kept saying no. According to The Local, the woman screamed so loudly that she eventually lost her voice, and the man put his hand over her mouth and nose and slapped her in the face. She said that he got more aggressive the more she protested and that he “seemed to like it.”
The defense? He said that he didn’t think she meant it. He thought she just liked it rough. He’d been with other girls who liked it rough, so why should he believe that this girl didn’t? I mean other than the fact that there was no indication that she was into that sort of thing.
Seems like a pretty clear cut case. A classic rape case, even. Women are often asked why they didn’t put up more of a fight. It sounds like this woman was pretty clear about her objections. She said no, he forced himself onto her anyway. That is otherwise known as rape.
Not so, said the court. The court said that both versions of what happened were credible and in agreement. And, come on bro. He didn’t mean to rape her:
Among other things, the court said it was clear that the 27-year-old had used violence to force the woman to have sex with him and that the woman’s “muted protests” could be attributed to fear that the man might become even more aggressive.
However, the court tossed out the rape charge, ruling it had not been proven that the 27-year-old had acted with intent to act against the woman’s wishes. The verdict cited the suspect’s explanation that he thought the woman’s protests were part of a violent sex game, despite the lack of an explicit agreement or consent between the two parties about dominant sexual role play.
I’m not an expert in Swedish criminal law by any stretch, but I am a lawyer, so let’s see what we can make of this absurd decision. In a translated version of Sweden’s criminal statutes, the crime of rape is defined as:
A person who by assault or otherwise by violence or by threat of a criminal act forces another person to have sexual intercourse or to undertake or endure another sexual act that, having regard to the nature of the violation and the circumstances in general, is comparable to sexual intercourse, shall be sentenced for rape to imprisonment for at least two and at most six years.
There is a thing in the law called mens rea, which means that someone has to knowingly commit a crime. For example, let’s say you found a dollar sitting on the table. The dollar is really your sister’s, but you thought it was yours that you left there the night before. So you pocket the money. Later your sister claims you stole from her. If the crime of theft is defined as knowingly taking something that isn’t yours, then you didn’t steal the dollar because you thought it was yours the whole time. You didn’t have the mens rea required to be guilty of the crime.
It doesn’t look like there is an element of mens rea in the Swedish rape statute. The statute seems pretty clear; if you assault someone or threaten someone into having sex with you, you’ve raped someone. Perhaps, since the man claims to have just been involved in rough sex, the judge thought it was possible that the man wasn’t threatening anything or wasn’t using violence as a way to force this woman to have sex with him. From what I can tell, that’s the only way this decision makes sense, and it may have been why the judge apparently felt an acquittal was justified and, in fact, has doubled down on his decision.
Perhaps the real problem in this case is how women aren’t trusted. Let’s say, for the sake of argument, that the man in this case really did think that the women just wanted rough sex. This seems like a totally unreasonable assumption. She was screaming no over and over again until she lost her voice. There was no agreement beforehand that they would engage in rough sex. The only way this mindset of his makes sense is if he doesn’t trust women to know what they want and express what they want. In short, this only make sense if he doesn’t trust women.
This is just an extreme case of how women are treated every day. Recently Jezebel reported on a man who thought that women have it totally easy on online dating sites. So, out of boredom, he created an online dating profile on OKCupid. He barely lasted two hours before the harassment drove him to delete the account. The guy learned an important lesson, for sure. But what if he’d just trusted that women are accurately reporting the harassment they get? I mean, it’s not like there has been a dearth of reports of online harassment.
Of course there is no One Lived Experience for all women. But that makes it all the more important to listen to and actually believe women (and people of color, and LGBT people, etc.) when they tell you what they like, what they don’t like, what happens to them, and so on. Some women like rough sex, but some don’t, and just because you’ve been with some women who like it doesn’t mean you can assume all women do. I feel like this is just Being a Decent Person 101, but apparently it needs to be said ad nauseam. If we did a little more listening and a lot less assuming, we’d all be in a better place.
Photo Credit: Thinkstock