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What is rape?

May 22, 2011

WikiLeaks founder Julian Assange is fighting extradition to Sweden over allegations of sexual assault. The case has sparked a debate in the country about what constitutes rape. Does the law need to be modernized?

Symbols of man and woman
The Swedes have long fought for gender equalityImage: AP Graphics

The sexual assault allegations against WikiLeaks founder Julian Assange have focused international media attention on Sweden. While his defense team and international commentators have found fault with Swedish rape legislation, and even alleged the victims' claims might be politically motivated, inside the country the debate has been more sympathetic to the women.

Prompted by the Assange case, Swedish journalist Johanna Koljonen began to tweet about her own experiences of not knowing where to draw the line in sexual situations.

"Even if we're able to unthink the troubling consequences for WikiLeaks if the allegations turn out to be true," she wrote on her blog, "we probably still wouldn't agree on how the facts should be interpreted."

Couple in bed
The debate highlights the need to talk about sexImage: picture alliance/dpa

Koljonen had hit a nerve. In no time hundreds of people bagan blogging about diverse sexual experiences, their comments revealing a high level of uncertainty about what's right and what's acceptable. "We have to talk about it," Koljonen tweeted.

Under the hash tag "prataomdet" or "talk about it" other journalists came forward with their stories. One of them was Sonja Schwarzenberger, a radio and TV presenter, who until recently edited the Swedish feminist magazine "Bang."

Schwarzenberger wrote an article in a national newspaper, talking about a very personal experience: A former boyfriend had initiated sex with her when she was asleep. She wrote about the difficulties of setting boundaries in sexual relationships.

"Maybe in some countries you don't even reflect upon the fact that in a lot of situations you have a pattern about sex that is really male-orientated," Schwarzenberger told Deutsche Welle.

"A lot of people are interested in this and I think that they can see that patterns of inequality in gender roles are coming with us to the bed," she said.

Where to draw the line?

The "talk about it" debate has shown that rape is notoriously difficult to define. The current legal definition of rape in Sweden is "intercourse or a sexual act comparable with intercourse by the use of force or threat."

This differs slightly from many other western countries, including the United Kingdom and Germany, where rape is constituted simply by sexual intercourse without consent. It is not necessary to prove whether force or threat was involved.

Madeleine Leijonhufvud, a retired law professor, has advised the Swedish government to bring the legislation in line with that of other western countries, and with the European Convention on Human Rights.

Leijonhufvud has followed the "talk about it" debate and thinks the law needs to be modernized to cover the nuances of sexual encounters.

Lotti Helstrom at work in the Stockholm Rape Crisis Clinic
Lotti Helstrom treats rape victims in StockholmImage: DW

"The law has to state that both parties are doing this together," Leijonhufvud said. "In Sweden and in many other countries you have this picture of one person doing something with another person's body. I think, at least to Swedish women, that's a very old-fashioned way of looking at sex."

Is rape rife in Sweden?

Sweden has the highest number of reported rape cases per head of population in Europe. Lotti Helstrom is a doctor at the rape crisis clinic in Stockholm. She says there are no more acts of rape in Sweden than elsewhere, but that women are more ready to come forward if they feel they have been violated.

"Many of those rapes wouldn't ever be reported in other countries where women would be regarded as being at fault, and they wouldn't have a chance in the system," Helstrom explained. She recognizes that rape is a particularly difficult crime to solve.

"I see the problems of proof - that nobody else was in the room, and that the stories are different - and that the court has to decide whether this is plausible that this person has done this or not," Helstrom said. "So I realize the judicial problems."

Petter Asp, Professor of Criminal Law at the University of Stockholm, agrees with Helstrom. He thinks the main explanation for the low conviction rates is that rape can come down to one person's word against another.

"Rape is often performed in private, where you have the victim and the perpetrator," Asp explained. "And that makes the point of departure for the task of the prosecutor - that is to prove that the crime has been committed - often not very good. It's difficult to prove that this was not consensual intercourse."

Julian Assange, WikiLeaks founder
Assange is wanted for questioning in Sweden on sexual assault allegationsImage: picture alliance/dpa

Asp argues that even if the law were to be changed, conviction rates would be unlikely to increase. He doesn't think it's fair to say that Swedish law is exceptional in any sense.

"There are some differences as regards labeling, and there are some differences as regards the outer limits, but basically it's all about the same factors," Asp said.

Johanna Koljonen, the journalist who triggered the "talk about it" debate thinks it's precisely the complexity of legislation for acceptable sexual practice that means it's important to develop a language to discuss it.

"How can judges and juries and the media be expected to speak honestly and think coolly about things we can't even say to ourselves without shame?" Koljonen wrote.

Author: Joanna Impey, Stockholm
Editor: Michael Lawton

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