The new juridical framework of the International Commission of Jurists (ICJ), published in March 2023 in cooperation with the United Nations (UN), propose that sexual activities with minors who consent should no longer be considered criminal. The new legal principles are intended to “guide the application of international human rights and criminal law.”  Principle 16 of the Code suggests that sexual activity with minors “may be consensual, even if not by law.”

“The application of criminal law should reflect the right and ability of persons under the age of 18 to make their own decisions about engaging in sexual activity,” the document states [1].

It is treacherous, as the ICJ does, to start from children’s sexual rights instead of starting from their need for protection from abuse. This attempt to relax established principles has caused international consternation and attempts have subsequently been made to downplay its importance [2].

The starting point for Sweden’s current legislation (2005) is that children can never consent to sexual acts. The legislation should provide special protection against sexual abuse for all children under the age of 15, so that the offender in the event of such abuse cannot rely on the child’s consent in his defence [3].

In Sweden, society’s view of sex with children has sharpened over time. The 1734 Act made it a criminal offence to have sexual relations with girls under the age of 12. When the Penal Code of 1864 was introduced, the age limit for girls was raised to 15 years. It was not until 1937 that boys received the same legal protection [4].

The motives behind the legislation protecting adults and the one protecting children from sexual abuse are partly different. Several of the penal provisions in the Penal Code, not least the rape provision, are based on the notion of people’s capacity for expression of will. When it comes to child abuse, it should not be possible to experiment with concepts such as voluntariness and consent. Children’s ability to express their will in such situations is naturally very limited.

The ICJ’s and the UN’s proposals therefore go completely against the legal protection we, for centuries, have known that children need.

Sources

1. The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty, International Commission of Jurists, 2023, https://icj2.wpenginepowered.com/wp-content/uploads/2023/03/8-MARCH-Principles-FINAL-printer-version-1-MARCH-2023.pdf
2. UN report did not call for decriminalizing sex between adults and minors, AP, 2023, https://apnews.com/article/fact-check-united-nations-report-consent-772818741019
3. En ny sexualbrottslagstiftning, Proposition 2004/05:45, 2004, https://www.riksdagen.se/sv/dokument-lagar/dokument/proposition/en-ny-sexualbrottslagstiftning_GS0345
4. Sexuella övergrepp, SOU 1976:9, Justitiedepartementet, https://weburn.kb.se/sou/328/urn-nbn-se-kb-digark-3274349.pdf