Strukturerad bevisvärdering eller ren gissningslek? En studie av tingsrätternas bevisvärdering vid våldtäkt år 2012
Structured assessment of evidence or pure guessing? A study of judgements from the swedish district courts regarding rape in 2012
Author
Summary, in English
The Courts assessment of the evidence, to evaluate facts in a case, is one of the most essential steps in the administration of justice. The assessment of evidence is regulated mainly by the ”free proof of principle trial” in chapter 35 § 1 of the Code of Judicial Procedure . The regulation is designed as a general clause, leaving a relatively large scope for the Court to implement its assessment of the evidence.
Rape is regulated in chapter 6 § 1 of the Code of Judicial Procedure and it´s a crime that causes problems of proof. The reasons are the lack of technical evidence and witnesses. The evidence often consists solely of the plaintiff and the defendant's inconsistent statements. The Supreme Court has in case law stated that the fact that the evidence in rape cases mainly consists of plaintiff's statement does not preclude that the evidence can be considered sufficient for a conviction. A central task för the Court is therefore often to evaluate the credibility and reliability of the parties' statements.
The purpose of the paper was to highlight the crime of rape in relation to its specific problems of evidence and to illustrate how the Court's assessment of the evidence occurs. The purpose resulted in the following issues: what circumstances and which rules does the Court consider in their assessment of the evidence in rape cases? Which evidence difficulties are there in rape cases? Is the Court's assessment of the evidence in rape crimes satisfying or can it be improved?
The essays introductory and theoretical parts has been implemented with a traditional right dogmatic approach which means that the current law has been interpreted on the basis of law, its legislative history and practice. The essays later part is of a more practical nature where the material analyzed and processed through a court case study. The study consisted of all district court decisions concerning rape in 2012.
In a total of 169 of the cases, 36 % were dismissed prosecutions. The offenders were in 99 % of the cases men and the victims were in 98 % of the cases women. The cases were divided into three categories with respect to the relationship between the offender and the victim; rape in close relationship, rape of superficial acquaintance and rape of unfamiliar. According to the study, the rape of superficial acquaintance was the most common. All cases where the court has considered plaintiff as non-credible resulted in guilty verdicts and all cases where the court has considered plaintiff's data unreliable resulted in guilty verdicts.
I have reached the following conclusions. The court is relatively free in their assessment of evidence. The ”free trial proof principle” is designed as a general clause and only gives the court an indication of how the assessment of evidence should take place. The court shall consider all that is proven in the case and the difficulties of evidence are often due to the lack of technical evidence and witnesses. It has been suggested lowering the standard of proof required in rape cases in order to increase the conviction rate, something that I'm adverse to. A reduction would seriously endanger the legal certainty. To access the cases that not reach the rape regulations requirement for violence or threats have been proposed an amendment whereby the rule is consent-based. I do not think that this change should be implemented primarily on the grounds that too much focus will end up on the victim and it´s sexuality. I think a lot of the problems and uncertainties surrounding the evidence in rape cases would have been solved if the court wrote better grounds which clearly motivated how the assessment of evidence have been implemented.
The rape legislation has been heavily criticized but I think it is important to distinguish between the legislator's intentions and the judicial application. I think the problem lies in an obscure legal application rather than the lack of legislation and that the problem has been attacked from the wrong direction. I believe that it is important to invest in quality rather than quantity. Instead of focusing on increasing the percentage of conviction of rape, focus should lie on the evaluation of evidence in rape cases and that it is carried out in the most correct and legally certain manner as possible.
Rape is regulated in chapter 6 § 1 of the Code of Judicial Procedure and it´s a crime that causes problems of proof. The reasons are the lack of technical evidence and witnesses. The evidence often consists solely of the plaintiff and the defendant's inconsistent statements. The Supreme Court has in case law stated that the fact that the evidence in rape cases mainly consists of plaintiff's statement does not preclude that the evidence can be considered sufficient for a conviction. A central task för the Court is therefore often to evaluate the credibility and reliability of the parties' statements.
The purpose of the paper was to highlight the crime of rape in relation to its specific problems of evidence and to illustrate how the Court's assessment of the evidence occurs. The purpose resulted in the following issues: what circumstances and which rules does the Court consider in their assessment of the evidence in rape cases? Which evidence difficulties are there in rape cases? Is the Court's assessment of the evidence in rape crimes satisfying or can it be improved?
The essays introductory and theoretical parts has been implemented with a traditional right dogmatic approach which means that the current law has been interpreted on the basis of law, its legislative history and practice. The essays later part is of a more practical nature where the material analyzed and processed through a court case study. The study consisted of all district court decisions concerning rape in 2012.
In a total of 169 of the cases, 36 % were dismissed prosecutions. The offenders were in 99 % of the cases men and the victims were in 98 % of the cases women. The cases were divided into three categories with respect to the relationship between the offender and the victim; rape in close relationship, rape of superficial acquaintance and rape of unfamiliar. According to the study, the rape of superficial acquaintance was the most common. All cases where the court has considered plaintiff as non-credible resulted in guilty verdicts and all cases where the court has considered plaintiff's data unreliable resulted in guilty verdicts.
I have reached the following conclusions. The court is relatively free in their assessment of evidence. The ”free trial proof principle” is designed as a general clause and only gives the court an indication of how the assessment of evidence should take place. The court shall consider all that is proven in the case and the difficulties of evidence are often due to the lack of technical evidence and witnesses. It has been suggested lowering the standard of proof required in rape cases in order to increase the conviction rate, something that I'm adverse to. A reduction would seriously endanger the legal certainty. To access the cases that not reach the rape regulations requirement for violence or threats have been proposed an amendment whereby the rule is consent-based. I do not think that this change should be implemented primarily on the grounds that too much focus will end up on the victim and it´s sexuality. I think a lot of the problems and uncertainties surrounding the evidence in rape cases would have been solved if the court wrote better grounds which clearly motivated how the assessment of evidence have been implemented.
The rape legislation has been heavily criticized but I think it is important to distinguish between the legislator's intentions and the judicial application. I think the problem lies in an obscure legal application rather than the lack of legislation and that the problem has been attacked from the wrong direction. I believe that it is important to invest in quality rather than quantity. Instead of focusing on increasing the percentage of conviction of rape, focus should lie on the evaluation of evidence in rape cases and that it is carried out in the most correct and legally certain manner as possible.
Department/s
Publishing year
2013
Language
Swedish
Full text
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Document type
Student publication for professional degree (Master's level)
Topic
- Law and Political Science
Keywords
- tingsrättsavgöranden
- tingsrätt
- rättsfall
- bevisning
- bevisvärdering
- sexualbrott
- våldtäkt
- straffrätt
- criminal law
- 2012
- samtycke
- rättsfallsstudie
Supervisor
- Per Ole Träskman (seniorprofessor)