Application and consequences of
the consent law

On 1 July 2018, changes were made to the legislation concerning rape, meaning that the law is now based upon the absence of consent instead of the occurrence of violence, threats or the victim’s particularly vulnerable situation – the so-called ‘consent law’. At the same time, a new rape offence was added to the law: negligent rape. Negligent rape means that the perpetrator was unaware that the other party did not wish to participate, but realised or should have realised that there was a risk of this.

These amendments to the law were welcomed by many as an important societal signal, but there were also concerns, mainly from the legal community, that the new necessary prerequisites (rules) would be difficult to apply. A year and a half after the amendments, Brå conducted an initial follow-up of their application by the courts. According to Brå, the review of all district court judgments from 2019 relating to rape against adult women showed that the legislative amendments have had an effect in the form of a number of prosecutions and convictions for new types of acts of the kind intended by the legislator. However, the study also showed some demarcation problems that may jeopardise legal certainty. These problems were particularly highlighted in the convictions for negligent rape.

However, this early follow-up could not consider the functioning of legal rules based on consent over a longer period of time. For this reason, the Government has now commissioned Brå to once again study the application of these rules.

Crime statistics

The amendments to the law have led to an increase in both the number of reports and the number of prosecutions for rape, compared to before the 2018 amendments. The number of prosecutions almost doubled in the first years after the changes: from 236 in 2017 to 455 in 2020. The numbers of reports also increased, but this increase largely constituted the continuation of a trend that had already started before the legislative amendments. In 2015, the number of reports was just under 4,000, compared to approximately 6,500 in 2021. In recent years, the number of reports and prosecutions has stabilised at around that level. As the number of prosecutions has increased more than the number of reports, the person-based clearance rate has increased from 7 per cent in 2017 to 11 per cent in 2023.

The number of convictions for non-aggravated rape has remained fairly stable, with approximately 300 convictions per year since 2019.

The increase in reports consists entirely of ‘new’ cases

The review of the reports indicates a fairly even distribution between cases in which the rape is said to have been committed by violence or threats, cases where the perpetrator is said to have taken advantage of the victim's particularly vulnerable situation, and ‘new’ cases where the offence solely consists in the victim’s non-consensual participation in the sexual act. Each accounts for about one third. In real terms, this means that the increase in the number of reported rapes since the 2018 legislative amendments is entirely made up of 'new' cases. The number of reported violent rapes, i.e., more 'traditional' rapes, appears to be slightly lower in the period under review, 1 July 2022 to 30 June 2023, than it was in 2016.

Apart from the nature of the abuse, there are many similarities between the 'new' cases and the 'old' cases. One clear difference emerges, however, namely that the parties in the 'new' cases are younger than those in the 'old' cases. The median age of the victim is 20 years in the 'new' cases, compared to 24 years in the 'old' cases. This means that almost half are teenagers. The median age of the suspect in 'new' cases is 25 years, compared to 31 years in 'old' cases.

In almost half of 'new' cases, the parties are acquaintances, and a similar proportion are in a close relationship. It is rare that the suspect is a complete stranger. About 70 per cent of the offences involve vaginal or anal intercourse, while 10 per cent involve only digital penetration of the vagina or anus.

Men are less likely to report rape

In this study, Brå has for the first time also studied reports of rape against men. However, such reports are rare. In 2022/2023, 283 rapes against men were reported, which means that reports of rape against a woman are 18 times more common than reports of rape against a man. However, the differences in victimisation between men and women decrease significantly after considering the number of individuals who report having been subjected to a rape involving violence, threats or exploitation of a particularly vulnerable situation in the past year, according to the Swedish Crime Survey (SCS). In the 2023 SCS, 0.4 per cent of men and 2.2 per cent of women reported having been the victim of such a sexual offence. This shows that the propensity to report a perceived abuse to the police is much lower among men than among women. The reasons for this have not been studied, but one reason may be that men find it more difficult to see themselves as a victim of rape than women, and may also feel even more guilt and shame about what occurred.

Reported incidents also differ between men and women. It is less common for men to report being raped on the basis solely of non-consensual participation, which the perpetrator failed to take into account. One fifth of reported cases are of this nature, compared to one third of cases where a woman is the victim. It is also slightly less common for the offence to be reported as having been committed by violence. Instead, what is most common is that the perpetrator has taken advantage of the victim’s particularly vulnerable situation; almost half of the reports refer to such a situation.

The fact that very few of the incidents where a man believes he was raped were reported to the police also means that one should avoid interpreting the reported cases as a representative picture of what rape against men looks like. Rather, the reported cases show only those rapes that men have chosen to report, and which thus become public.

Many of the reported cases are characterised by the fact that the victim cannot be accused of having been involved in any way in what occurred, lending support to the significance of this selection mechanism in what is reported. This is evident, for example, in the large proportion of cases where the victim says he was asleep when the rape took place. The proportion of 'new' cases in which the victim is a man is also smaller, compared to the proportion of cases in which the victim is a woman.

Police resources for investigating rape have increased

One risk when the overall number of rape reports increases, as has occurred since the law was amended, is that police resources to investigate offences become increasingly inadequate. However, Brå's review shows that police investigative teams working with rape have received significantly increased resources in recent years. On average, regional resources for so-called ‘BINR’ groups have increased by 50-90 per cent since 2018 (the acronym stands for Brott i Nära Relation (Crime in Close Relationships). To a very large extent, police adhere to existing guidelines regarding how to conduct rape investigations (when such measures are relevant and feasible). The review of police investigations – and group interviews with investigators – does not suggest that police take 'new' cases less seriously than 'old' ones. Police conduct more interviews per investigation and more alcohol and drug tests than prior to the legislative amendments. There are no fewer interventions in investigations of 'new' cases than in other investigations.

However, police interventions have not led to a significant increase in the proportion of reported offences leading to person-based clearance. Around 90 per cent of all reports still fail to lead to any prosecution. The proportion of 'new' cases leading to person-based clearance is somewhat lower than for 'old' cases, as there is less evidence in the form of injuries or drug tests to show that the victim was in a particularly vulnerable situation.

The police investigators who participated in the group interviews generally view the legislative amendments favourably, but at the same time state that the legislative amendments have significantly increased their workload. This is both because the number of reports has increased, and because the ‘new’ cases are generally difficult to investigate. This requires investigators to have a high level of expertise, including in interrogation techniques, in order to establish how the victim expressed his or her refusal to participate and how the suspect interpreted the situation.

The number of convictions in 'new' cases has doubled since 2019

The 376 rape convictions studied from 2023 are distributed similarly to the reports in terms of type of case. However, violent rape accounts for a slightly larger proportion of convictions than of reports (41 per cent compared to 33 per cent). This is because forensic evidence is more likely to be available in such cases, increasing the chances of prosecution.

The number of convictions for 2023 relating to 'new' cases was 121, which is almost double the number of convictions since Brå’s previous review for 2019. Of the 'new' cases in 2023, 26 involved negligent rape and all of these were convictions. That all resulted in conviction is due to the fact that negligent rape is very rarely the prosecutor's preferred criminal charge, and that the offence is only relevant after the court has ruled that the necessary prerequisites for the preferred charge of rape are not met. In 26 cases, the court has instead issued a conviction of negligent rape.

When the victim in a 'new' case recounts what happened, two situations are fairly common. In around half of cases, she describes repeatedly saying no and indicating that she did not want to have sex, but that the defendant did not listen, and she eventually gave up and remained passive. In most of the other cases, the victim describes how she reacted by becoming completely immobile. This passivity is often explained by the victim as a kind of "frozen fright", but the lack of a clear reaction is also often linked to waking up to the defendant trying to initiate some kind of sexual act and her inability to react in her recently awoken state. In a few cases, the victim is surprised by a brief sexual act and does not have time to react (in these cases, the victim is fully awake when the abuse occurs).

Conviction rates have increased in cases with previous intimate contact

In Brå's initial follow-up in 2019, no more than just over half of 'new' cases that were prosecuted resulted in convictions. This share has increased significantly, to 77 per cent. The conviction rate for 'new' cases is thus at about the same level as for 'old' cases. This means that a greater consensus has developed between prosecutors and courts regarding how to interpret the new legal rules on consent and what is required in terms of evidence.

As regards the application of the new rules by the courts in 2023 compared to 2019, some changes can be observed which may have contributed to an increase in the conviction rate for 'new' cases.

One change concerns ‘new’ cases where the parties had sex in the past, but not on the same day or evening. The proportion of 'new' cases where the parties had intimate contact before the rape has remained about the same between 2019 and 2023. However, one change is that these types of cases are now more likely to result in a conviction, which was rare in 2019. As of 2023, the conviction rate in such cases has increased significantly, and is about the same as in cases where the parties had no previous intimate contact.

Another change relates to the question of how to assess multiple sexual acts in succession. In these cases, the victim initially participates voluntarily, but after a break no longer wishes to participate, while the defendant nevertheless continues. There were no such cases leading to a conviction in 2019, while there are several convictions in 2023 involving this type of case.

In Brå's view, this change can be interpreted to mean that the courts have now, to a greater extent than initially, adopted the spirit of the law - that the requirement of consensual participation in each individual sexual situation is equally strong, regardless of whether the victim has previously consented to participate.

Oral evidence alone is more often accepted as sufficient for a conviction

A further observable change is that oral evidence alone seems to be increasingly recognised as sufficient for a conviction. The share of all convictions in which there is only oral evidence has increased, from 16 per cent in 2017 to 30 per cent in 2023. In convictions for 'new' cases, it is as high as 40 per cent.

The fact that oral evidence can be sufficient for a conviction is in line with previous Supreme Court rulings, but it is only now that it seems to have had an impact in the district courts.

A more consistent approach can be seen in the district courts in 2023, compared to both 2017 and 2019, regarding what circumstances must be present for oral evidence to be sufficient for a conviction. Victims must have been assessed as both credible and reliable by reporting what happened relatively soon, having a concrete account of the event, being clear about what they remember and do not remember, and being consistent in their description. In the immediate aftermath of the incident, victims must have told others in concrete terms what they had experienced (police, healthcare staff, friends or relatives) and described the incident in the same way in the various contexts. Finally, according to the testimony gathered, victims must show signs of traumatisation after the incident. Moreover, in several of these convictions, the defendant's story is clearly contradictory and not credible.

There are occasional convictions based on oral evidence alone in which not all of these criteria are met, but they are met in most cases.

Application of negligent rape rules still difficult

In Brå’s initial follow-up, the authority deemed that ambiguities regarding interpretation of the law were mainly found in the convictions for negligent rape. This assessment remains valid. It still appears, based on the 2023 judgments, very difficult to determine whether the perpetrator's acts were done with intent, including so-called "intentional indifference", or through gross negligence. Some judgments from 2023 appear to be well justified and seem to address precisely the cases intended by the legislator. But in the majority of cases, an acquittal or a rape conviction seems more reasonable.

Another aspect in this context is that the proportion of convictions for negligent rape where there is only oral evidence is significantly higher than in other convictions. In 15 of the 26 convictions, there is only oral evidence (58 per cent). This further adds to the uncertainties in the judgments concerning negligent rape.

How defence counsel and prosecutors view the new rules

The interviews with prosecutors show, as in the initial follow-up, that the profession is in favour of the legislative amendments. None of the interviewees expresses a predominantly negative view, and all consider that the rules work well. The vast majority consider that the rules are easy to apply and have facilitated getting a conviction.

The survey of 50 lawyers who defended a rape case in 2023 also yielded results that were similar to those of the survey in the initial follow-up. Overall, lawyers remain critical of the new legal rules; for example, three out of four consider that legal certainty has been weakened. Several also describe what they deem to be the practical consequences of the changes. One lawyer answers at length as follows:

The aim of the law was to close loopholes that existed. At the same time, a consequence is that young people seeking casual sexual relations risk long sentences, simply because they perceive a situation differently from a partner with whom they have a casual relationship. I am not sure if this is the right way to go. There must be room for young people to make mistakes without risking prison for years.

Increased minimum sentences

Despite being rejected by a majority of the consultation bodies who considered the proposal, the minimum sentence for non-aggravated rape was increased, from two to three years' imprisonment, on 1 August 2022. This has led to an increase in the prison sentence for non-aggravated rape, from an average of 26.5 months in 2019 to 37 months in 2023. The average for negligent rape was 10 months.

In the interviews with police officers and prosecutors, as well as the survey of defence lawyers, the issue of increasing the minimum sentence was raised. A majority of respondents in all groups generally felt that the punishment is not proportionate to the gravity of the offence. For example, a police investigator compared it to the minimum penalty for gross violation of a woman’s integrity, which is one year in prison.

To achieve a broader perspective regarding the level of the minimum sentence in Sweden, Brå has sought to compare it with the level of sentences in other European countries that have rape legislation based on the absence of consent. A review of the legislative texts of 22 European countries with consent-based laws shows that, in most countries, the minimum sentence for rape is lower than in Sweden. A few countries have higher minimum sentences than Sweden according to their legislative texts, but this does not mean that sentences are so high in practice. Researchers in six countries were therefore asked to assess what the sentence would have been in three fictitious cases, which resembled cases that resulted in three years’ imprisonment in Sweden. The responses indicate that, in cases solely of refusal to consent, the sentences are in practice significantly lower in these countries than in Sweden.

Overall, the study raises a number of questions regarding whether the minimum sentence for rape is well considered.