All sexual acts must be of free will
To give consent to one type of sexual act doesn’t mean that the same consent is valid for other acts. Therefore, it is important to ask or in other ways find out what the other person wants for each new sexual act. For example, if a person has said or showed that they want to have oral sex, it doesn’t mean that they also want to have vaginal or anal sex. The person must say or show that they want to participate in each new sexual act, regardless of who took the initiative
Sex that is never an act of free will
There are situations, according to the law, when a person can never be considered to have participated consensually in a sexual act. In the following situations, it is always a crime to carry out a sexual act with another person. It doesn’t matter if the person has previously said or showed that they wanted to participate.
- Assault, violence or threats
If a person participates in a sexual act after having been subjected to assault, violence or threats, for example if the perpetrator hits the person or holds them down by force. Another example is if the perpetrator threatens to spread nude images of the other person.
The person being violent or threatening does not have to be the one carrying out the sexual act on the victim for it to be considered a crime. This is the case, for example, when a person buys sex from someone who is only participating because they have been subjected to violence or threats,or is otherwise in a situation that means that participation cannot be an act of free will.
- Particularly vulnerable situation
If the perpetrator takes advantage of another person who is in a particularly vulnerable situation, such as under the influence of alcohol or drugs, has a disease, an injury or a mental disorder.
Another example is if a person is very afraid from being in a certain situation. Sometimes, such fear can make the person paralysed, a state called “frozen fright”.
- Abuse of dependency
If the perpetrator grossly takes advantage of the fact that another person is dependent on them. This may apply to, for example, a teacher and a pupil or a manager and an employee.
The criminal offences rape and sexual abuse
Sex or sexual acts that are carried out against a person’s free will can be, for example, rape or sexual abuse. The difference between the crimes is determined by the type of sexual act that has taken place.
The criminal offence rape means that the perpetrator performs sexual intercourse or another sexual act that is comparable to intercourse with a person who has not given voluntary consent. This may apply to, for example, vaginal, anal or oral sex. Other examples include penetration with objects or fingers. Rape can also be when the perpetrator’s and the victim’s genitals come into contact with each other.
The criminal offence sexual abuse includes sexual acts against a person who has not given voluntary consent, which do not count as acts of rape. Some examples are if someone forces a person to masturbate, or if the perpetrator touches the victim while masturbating themselves.
Two new criminal offences
There are two new offences in the sexual offence law: negligent rape and negligent sexual abuse. These apply to situations where a person carries out a sexual act even though they suspect, or should have suspected, that the other person might not want to participate. A person who wants to have sex therefore has the responsibility to find out whether all persons involved really want to participate.
Sexual offences from a distance
Rape, sexual abuse and other criminal sexual offences can also be committed from a distance, for example over the phone or on the Internet. One example is if someone forces another person to carry out sexual acts on themselves in front of a web camera.