Miten uuden seksuaalirikoslain vapaaehtoisuuskriteeriä tulisi tulkita?
Avainsanat:raiskaus, itsemääräämisoikeus, perusoikeudet, ihmisoikeudet, laintulkinta
How should the involuntariness criterion in the new sexual crimes
legislation be interpreted?
New consent-based sexual crimes legislation came into force in Finland in January 2023. Under the new legislation, rape is defined as sexual intercourse with a person who does not participate voluntarily (Chapter 20, section 1 of the Criminal
Code). A person is not participating voluntarily if they have not expressed voluntariness through words, actions, or another manner (“yes means yes”) or, even if voluntariness has ostensibly been expressed, if the perpetrator carries out
the sexual intercourse using violence or a threat or by abusing the other person’s inability to formulate or express their will. This article is an exploration of the limits of the new definition using example cases drawn from court cases, legal
literature and stories reported in the media, from Finland and abroad. There is currently no case law to give any guidance on the interpretation of voluntariness, which introduces uncertainty into the conclusions offered.
The first part examines the definitions of voluntariness and sexual self-determination. Both voluntariness and sexual self-determination should be understood as relational qualities whose evaluation should be sensitive to context. Voluntary participation requires making a choice and possessing the capability, freedom, opportunity and overall possibility to make a choice.
The second part examines the operation of the voluntariness criterion in example cases, covering severe intoxication, being half-asleep, conditional consent, stealthing, sexual fraud, error in motivation, pressuring and the abuse of a
position of power. I suggest that under conditions of intoxication, voluntariness could be assessed through initiative and enthusiasm rather than (weak) activity. Passivity should only be considered an expression of voluntary participation in
exceptional cases, where the parties have a mutual understanding about the significance of passivity. In addition, I suggest that, for example, stealthing should be considered a case of conditional consent, where the sexual intercourse that is carried out is a different act from the sexual intercourse that was consented to. Criteria for what makes one form of sexual intercourse different from another form of sexual intercourse would include its nature, its physical sensation and
the risks associated with it. These conclusions can, however, be contested.
Further research is also needed on questions of intent and proof.