Raiskauksen määrittelyn kipukohta: pakottamalla vai ilman suostumusta?
Avainsanat:
rikosoikeus, kansainvälinen rikosoikeus, raiskaus, suostumus, seksuaalirikokset, ihmisoikeudetAbstrakti
Lakimies-aikakauskirjan parhaan kirjoituksen palkinto 2017
Key challenge in defining rape: by force or without consent?
The main issue considered in the article is the development of the definition of rape in the context of international criminal law, human rights law and Finnish national criminal law during the past few decades. The primary question is whether Finnish legislation has kept up with international and European development. In international criminal law and in human rights law, the definition of rape has evolved to a concept that aims to cover several different forms of rape, i.e., not just acts committed by force but also other forms of non- consensual sexual intercourse. What is common for the definitions adopted at the international and at the European level is the context-sensitive approach. These definitions are based on the fact that circumstances can be compelling for the victim even if explicit force or threat of force has not been used. Finnish legislation on sexual offences has been amended several times during the past decades. However, the matter of whether the concept of rape should cover all non-consensual sexual intercourse was first considered by the legislator only after the adoption of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). The definition of rape was amended in 2014, but the legislator chose not to use lack of consent as a basis for the definition. The outcome is that Finnish rape legislation still somewhat overemphasises acts committed by force or by threat of force. Therefore it seems that the Finnish legislator does not consider other forms of non-consensual sexual intercourse – for instance the abuse of vulnerable persons – as reprehensible as rape that is committed by force.
