Skyddsvärda intressen & straffvärda kränkningar. Om sexualbrotten i det straffrättsliga systemet med utgångspunkt i brottet sexuellt ofredande

Abstract

What is considered a sexual offense and what constitutes the sexual integrity protected by Swedish criminal law? Through a comprehensive historical, theoretical and doctrinal analysis, this thesis considers the question of how distinctions between sexual and other forms of violence, abuse or harassment are made in criminal law. Firstly, the thesis explores the emergence of sexual offenses in the period when modern criminal law was formed. In parallel with the law’s own narrative of the history of sexual offenses the thesis shows that a different story can be discerned whereby sexual offenses are created through erotic sexuality. This means that sexuality is formulated as something positive and in itself worthy of protection. It also reveals contradictions in the understanding of sexual offenses when sexual offenses are described both in terms of gendered violence and in terms of gender neutral sexuality. Secondly, Niklas Luhmann's theory of law as an autopoietic system is used to show how sexual offenses are created anew – reproduced – through every communication of the legal system. Particular attention is given to the crime of sexual harassment (ch. 6 sec. 10 Penal Code). The reason is that this is a crime in which a specific requirement has been articulated by courts, namely that the act has a sexual nature. By showing that meaning is given to this requirement at the moment it refers to the system’s environment, the tautology of the legal system is unveiled: this is sexual harassment because (the court says) it is sexual harassment. However, court decisions are structured by recursive references to what has been decided before in the legal system. Through this structuring sexual offenses are understood as grounded in the body, particularly the genitals, but also related to the victim’s integrity and the motive and mind of the offender. It is concluded that the outer limit of sexual offenses and the sexual integrity it aims to protect become dependent upon the perpetrator’s sexual interest in performing the act.