Sukupuoliyhteys lapsen kanssa – raiskaus vai ei?
Avainsanat:
rikosoikeus, seksuaalirikokset, raiskaus, lapset, oikeuskäytäntöAbstrakti
Sexual intercourse with a child: Rape or not?
The main question considered in the article is to what extent sexual intercourse with a child constitutes not only sexual abuse of a child, but also rape according to Finnish law and jurisprudence. The analysis is based on legislation, preparatory works, legal literature, and case-law. The case material consists of 63 cases where the defendant was accused both of rape and sexual abuse of a child. The main outcome was that the courts rarely consider sexual abuse of small children as rape. It appears that courts consider sexual abuse of children as rape mainly in two types of case. First, the legal provision on rape applies to such sexual abuse of a child where the perpetrator has forced a teenager into sexual intercourse by the use of violence. This kind of act can be deemed rape even if the violence used is relatively slight, like pushing or grabbing. Second, an act of rape can consist of such sexual abuse of a child where the perpetrator has taken advantage of a teenager being helpless because of inebriation or sleep. It seems that the courts do not consider children to be in helpless merely because of their age and the state of their physical and mental development. Prosecutors and courts have interpreted the concepts of fear and other helplessness narrowly and the argumentation in the preparatory works has offered a solid basis for such interpretation. However, this kind of narrow interpretation is in contradiction with the current European view that promotes effective and extensive protection of sexual integrity. Therefore, it is necessary to reconsider the Criminal Code provisions dealing with rape and sexual abuse of a child as well as the interconnection of these provisions.
