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. The new study presented here is broader than the initial follow-up.

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 (the acronym stands for Brott i Nära Relation –Crime in Close Relationships) have increased by 50-90 per cent since 2018. 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.

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