Capricious credibility – legal assessments of voluntariness in Swedish negligent rape judgements

Abstract

A new rape legislation, premised on the requirement of voluntariness, entered into force in Sweden during 2018. This article examines the application and interpretation of voluntariness in Swedish negligent rape judgements with a unique combination of the theoretical perspectives’ sociology of emotion and feminist-legal studies. The material consists of 12 court judgements, from the period 2018–2020, analysed by means of thematic content analysis. The findings show that the judgements in negligent rape cases are based on an evaluation of credibility, supported by evidence that consists of witness statements. These evaluations entail emotions and stereotypes about gender and sexuality, pertaining to rape myths – leading to inconsistent outcomes. Yet, some fundamental assumptions about gender and sexuality are challenged, indicating that the new law may invite discursive shifts and enhanced reflexivity in legal reasoning. The findings are valuable in the work to minimize legal discrimination and secure equality before the law.