Open AccessKan et frivilligt samleje være strafbart?
Author(s) -
Clara Juul Holm
Publication year - 2021
Publication title -
nordisk tidsskrift for kriminalvidenskab
Language(s) - English
Resource type - Journals
eISSN - 2446-3051
pISSN - 0029-1528
DOI - 10.7146/ntfk.v108i2.128531
Subject(s) - voluntariness , discretion , legislation , law , context (archaeology) , danish , political science , expression (computer science) , psychology , sociology , law and economics , philosophy , history , computer science , linguistics , archaeology , programming language
This article examines some conceptual challenges associated with the content and possible demarcation of the notions of consent and voluntariness in recent Danish legislation on rape. It is argued that free will or voluntariness, and the expression thereof, should be seen as occurrences on a spectrum, and that the expression of consent or free will is at least partially necessary if such subjective concepts are to be useful in a legal context. The paper examines some general implications of this for possible outcomes of case law. Uncertainties include what should be made of the use of the »presumptions« mentioned in the bill. Some implications for the evaluation of a defendant’s mens rea are also touched upon. It is concluded that the Danish court enjoys a margin of discretion that allows it the ability to criminalise instances of intercourse even when they are not necessarily non-voluntary.