Rape in Finnish criminal law and process - A discussion on, and beyond, consent

Abstract

Chapter 20 of the Finnish Criminal Code, which regulates sexual offences, is currently undergoing structural changes. Focusing on the section of rape, this article investigates the amendments proposed by the Ministry of Justice in 2020 in the light of the current Finnish legislation, legal practice, supranational normative developments and societal change. Lessons are drawn from a recent research project about the attrition of sexual violence in the Finnish criminal process by a research team at the University of Turku. The article welcomes the increased emphasis on voluntariness, contextuality, power imbalances and communication in the suggested draft law. It also criticises some weaknesses of the draft legislation. Conclusively, it proposes further action to improve legal clarity and strengthen the enforcement of a new legal conceptualisation of sexual violence.

Reasoning from background knowledge: Evaluating and explaining behaviour in Finnish rape judgments

“…1 Broadly speaking, rape thus had two modes of commission: one based on physical violence or a threat, the other on abusing a victim's helpless state. The threshold for ‘violence’ was very low, encompassing even actions commonly included in voluntary sexual intercourse, such as sitting on top of the other person or directing them by pushing on their shoulders (Alaattinoğlu et al, 2021: 35; Ojala, 2014). In such cases, non-consent could form a mediating factor, so that judges might actually evaluate non-consent rather than violence (Jokila and Niemi, 2020: 123–124).…”

“…The definition of rape was not fulfilled if the victim was awake but passive or only half-asleep at the moment of intercourse, even if it was clear that the victim had not consented (Amnesty International Finnish section, 2019: 23–25). The ‘other helplessness’ provision could be applied to severely intoxicated but conscious victims, though judicial practice on this was uneven (Alaattinoğlu et al, 2021: 36). Consent could form a mediating factor in these cases.…”