In my earlier article Semantogymnastics about Microconsent I have evaluated an emerging trend in the jurisprudence of sexual consent. It appears that the first country to apply the associated principles to criminal law will be Sweden.
Sweden plans changing the law to require explicit consent before sexual contact (The Guardian) and at each step of sexual encounter (RT). I have contacted the Swedish Ministry of Justice for comment and have been advised by Kristoffer Strömgren that the wording of the draft legislation has now been amended by removing the 'explicit consent' requirement in favour of just 'consent'.
The Swedish Prime Minister Stefan Löfven previously attempted to clarify the meaning of the proposed legislation by stating that you should not engage in sex unless you are sure that consent had been granted - "If you are unsure, then refrain!" (The Independent). This seemingly innocuous answer does not clarify the matter at all - it is now unclear what would constitute a reasonable ground of being sure that consent had been granted. It also implies a requirement of strict certainty rather than all-things-considered subjective judgement that would allow for the possibility of fair misunderstanding - on one view, we can never be sure about the state of mind of another.
Most notably, the legislative amendments aim to lower the threshold of culpability for rape. According to the press release by the Ministry of Justice: "convicting a perpetrator of rape will no longer require that violence or threats were used, or that the victim's particularly vulnerable situation was exploited" but only that consent was not given. A curious and possibly the most controversial artefact in the new legislation goes by the name of 'negligent rape': a case of culpable negligence when, for example, "someone should be aware of the risk that the other person is not participating voluntarily but still engages in a sexual act with that person." Given that some risk (or uncertainty) always exists unless explicit consent is repeatedly (or better, continuously) declared, the 'explicit consent' provision which was ostensibly removed from the latest draft of the legislation is still present by implication, or so it can be interpreted in lieu of a clear distinction between acceptable risk and culpable risk, for example.
While in cases of unqualified rape the burden of proof about non-consent rests with the prosecution, the concept of 'negligent rape' appears to shift the burden of proof from the alleged victim onto the alleged perpetrator, that is, it makes sex akin to a strict liability offence which can be defended only by proving that consent was granted, because some risk of misunderstanding is always present. You may be committing 'negligent rape' if there is a risk that your sexual partner is not consenting; a subsequent accusation of non-consensual sex is a performative proof that 'there was a risk', therefore you are guilty. The most natural human behaviour (sex) is thus implicitly criminalised, subject to a lawful excuse defence provision.
Swedish lawmakers deny that the burden of proof is shifted from the accuser onto the accused, but this denial, even if well intentioned, may be misleading. While it is true that the accuser needs to demonstrate beyond reasonable doubt that sexual intercourse took place (a claim which is generally not denied by the accused in the context of a regular sexual partnership), that there was a risk of the alleged victim not participating voluntarily (this could apply if explicit consent were not given at every step of the encounter) and testify under oath that consent was not given, this is an unreasonably low standard of proof for demonstrating culpability of the accused for rape. It amounts to an automatic transfer of the burden of proof from the accuser onto the accused on the basis of a mere accusation of non-consensual sex, whereupon the accused is faced with a nearly impossible task of proving that consent was in fact given, or that the risk of misunderstanding about consent was too low to trigger the obligation to refrain from engaging in the sexual encounter.
Practical considerations of the proposed legislative change are mind boggling. For example, two people could be deemed liable for 'negligently' raping one another, simultaneously, if they failed to mutually express consent prior to having sex and at every stage of the sexual encounter. Sex with a sleeping spouse seems to be flatly criminalised, with no clear way of avoiding liability other than abstention. Uncertainties about practical application of the proposed consent obligation are likely to create a lot of frustration and sexual stress for both male and female partners in healthy, normal and consensual sexual partnerships. One unintended consequence of the proposed legislation will be that of providing every disgruntled or rejected former partner (male or female) with a means to exact revenge for any kind of grievance, simply by declaring that non-consensual sex took place at any time during the relationship. Trying to prove explicit consent or a negligible risk of misunderstanding about consent in every past sexual encounter may be an impossible challenge even for the most diligent of lovers. I could not think of a more sinister way to create distrust in sexual partnerships and thus weaken the family unit.
Since buying sex in Sweden is already illegal (The Associated Press) it is unclear how this fundamental human function could be fulfilled without running afoul of the law. I sincerely hope that Swedish lawmakers will further amend the draft legislation to overcome the concerns raised here, or demonstrate that these concerns do not apply. I am awaiting further clarification from the Swedish Ministry of Justice...
Comment: The solution is obvious and simple: government-issued permits and contracts signed before, during, and after each and every sexual encounter, signed by witnesses. And to confirm repeated and continuous consent and rule out forgery or coercion to sign such documents, each sexual encounter must be videotaped and/or witnessed by a neutral third party (preferably government-approved). With such measures, Sweden will become a sexual utopia, free of sex of any kind.