Sense and Caution : A Comparative Perspective on Sweden’s Negligent Rape Law

Many jurisdictions have broadened the scope of criminalized sexual violence through the introduction of consent-based models. At the same time, measures have been taken in regards to the subjective elements for criminal liability in answer to a common defence in rape cases: namely, that the defendant lacked knowledge of the other person’s lack of consent. While some jurisdictions have introduced limitations to the defence of mistaken belief in consent – for example, the ‘reasonable steps’ provision in Canada – other countries, like Sweden, have introduced negligence as a sufficient fault element for rape liability. This paper examines the recently established negligent rape law in Sweden as one instance of a trend: a move in sex crimes law towards introducing a duty of diligence for persons who initiate sexual acts. I use a rape case from a Swedish court of appeal to illustrate fault elements across jurisdictions and to discuss some implications of criminal law operating with a diligence standard