Women and Justice: Keywords

Domestic Case Law

KKO 2013:96 Supreme Court of Finland (2013)

Sexual violence and rape

The issue here was related to the evaluation of evidence and the question whether the sexual intercourse in question was coerced. In this case, A and X had engaged in sexual intercourse which, according to A’s testimony, she was coerced into following physical approaches and violence by X, the male defendant. A had asked X to stop the approaches and attempted to resist him both physically and verbally. X had not complied but instead continued to engage in sexual conduct. A contended that due to the distress and fear caused by the events and the fact that she was physically significantly smaller than X she was no longer able to resist X’s approaches. A stated that the only thing she could think about at that point was that she did not want to get a sexually transmitted disease from X and, therefore, handed X a condom for him to use. After this, A and X had sexual intercourse. X contended that the intercourse was consensual. X further claimed that he could not have understood, in particular after A had given him a condom, that he was coercing A to have sexual intercourse. In its evaluation of the evidence, the Supreme Court stated that it held A’s description of the events reliable as her account was supported by the facts presented to the Court and since X’s description of the events had changed during the process, thereby reducing his credibility. X had, however, further claimed that even if the description of events given by A was accurate, the elements of the crime of coercion into sexual intercourse were not present in the case. As set forth in Section 3 of Chapter 20 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), the crime of coercion into sexual intercourse is a rape that, in view of the slight degree of violence or threat of violence and the other particulars of the offence is deemed, when assessed as a whole, to have been committed under mitigating circumstances. The elements of rape under the Criminal Code include the requirement that a person forces another person into sexual intercourse by the use or threat of violence, and the Court affirmed that a breach of the victim’s right of self-determination is central to this requirement. The Court held that A had resisted X’s actions but had been coerced into sexual intercourse by X through the use of violence and the resulting fear and helplessness that A experienced. The Court further held that the fact that a victim ceases to resist, physically or verbally, an offender’s approaches cannot be interpreted as inferred consent to sexual intercourse by the victim. More specifically, the Court stated that even if the offender assumed that the victim had changed her mind, this does not remove intent on the part of the offender absent such change of mind being clearly expressed by the victim. The Court held that A’s handing over the condom, under the circumstances that this event took place, did not constitute such expression of a change of mind. Therefore, the Supreme Court held that there was sufficient evidence to prove X guilty of coercion into sexual intercourse. X was sentenced to 10 months of probation and to pay damages to A.