Judge: It’s only rape if he thinks it is

A Swedish court excuses a trial on the grounds that the accused didn't intend to assault anyone

Topics: Sex, Love and Sex, Rape, Sexual abuse, Sexual assault,

Judge: It's only rape if he thinks it is (Credit: RonTech2000 via iStock)

Last week, Swedish Judge Ralf G. Larsson courted controversy after acquitting a man accused of rape. Today, he tried to clear his own name by publishing an Op-Ed defending his verdict. Larsson’s rationale? It couldn’t have been rape unless the accused thought it was rape.

Let us review some facts about the case: The accuser allegedly yelled “no” so loudly that she lost her voice. She told investigators, “I expressed very clearly that I didn’t want to, so there was no way he could misunderstand me.” He allegedly responded by becoming more aggressive, slapping her face and covering her nose and mouth so that she couldn’t breathe.

Again, this is all alleged. But here is the accused’s defense: “I recognized the way she said no as part of the sex.” (Presumably he meant that she wanted to role-play or have rough sex, which brings me to this public service announcement: No doesn’t mean yes unless you’ve explicitly negotiated it for kinky play and have a safe word. End of story. Zero exceptions. It isn’t complicated. No.) Disturbingly, he added, “I recognized it from other girls.”

The judge argued today in an Op-Ed, “If the thought had not occurred to him, that she did not want to have sex with him, then he didn’t have any intention to do what he did.” Translation: The accused couldn’t possibly be guilty of rape unless he intended to rape. Since when is ignorance of the law a legal defense? Consent illiteracy is not a free pass to rape. Intent is no excuse. Right?

Well, it shouldn’t be — but Sweden considers intent to be crucial in criminal cases. As an Amnesty International report on sexual assault in Nordic countries put it, “To convict a person of a crime it has to be proven that the person was acting with intent; i.e., that he intended to commit a crime or realised that the act actually constituted a crime.” That’s why Swedes have been rallying for reform of rape laws.

It isn’t just the intent model of sexual assault — which ignores the fact that rapists often rationalize assault with “she wanted it” — that is problematic here. The judge also defended the accused by arguing that he exhibited restraint. “The woman had made very clear to the man at least six times that she did not want to do what he wanted to do,” he wrote. “For example, oral and anal sex came up, and at each such incident the man did not proceed with what he wanted to do.” But, just to be clear, he did proceed with vaginal intercourse. It’s kind of like saying, “Well but he didn’t steal all of her money, so maybe he was just confused about whether she wanted to be robbed. Maybe he thought she was into financial domination!”

It would be unreasonable to try the accused in the international court of Internet opinion — judges and juries exist for a reason, and we certainly don’t know all of the details of the case — but Larsson’s comments are another story. We’re free to judge the hell out of his remarks. So, please, judge away.

Tracy Clark-Flory

Tracy Clark-Flory is a staff writer at Salon. Follow @tracyclarkflory on Twitter and Facebook.

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