The Becoming of the Legal Phenomenon of Rape in Times of Transition: An Analysis of Danish Rape Cases as Affective Assemblages

• In Event: Gender, Crime and Justice Working Group Panel 5: Sexual violence

Abstract

In 2021, the Danish criminal provision on rape was amended from being constituted around coercive sex to becoming constituted around the sex without mutual consent as the actus reus of the crime. This paper explores the reorientation of the legal phenomenon of rape after the amendment, by analysing the judicial review and assessment of evidence in court cases. The amendment of the rape provision has entailed an increase in word-against-word cases, where technical evidence, such as medical examinations, is ambiguous or nonsuggestive in relation to the legal assessment. The rulings in these cases are thus primarily based on the credibility of the testimonies. To substantiate their discretion in this regard, the judges and other legal actors resort to their experience and imagination as to the plausibility of various scenarios, to confirm or reject divergent testimonies and reconstruct the incidents, also relying on similar assumptions that has been expressed by the courts in earlier cases. The reiterations of certain elements of and around the incidents gradually congeal into legal discretional criteria that are amplified with each case, affecting the legal definition of rape. Thereby, the legal phenomenon of rape is enfolded in legal as well as extra-legal norms and affects that are folded into case law by procedural statements, testimonies, expert statements, digital data, forensic examinations, etc., and the raison d'etre of the legal actors, as the future potential of the law is both enabled and constrained by such factors. Based on case law analysis and legal ethnographic studies, entailing observation of court cases and focus group interviews with different legal actors, the paper theorises this process through the concepts of affectivity and assemblage, accentuating the extra-legal factors that contribute to enacting rape as a legal phenomenon, such as normative sexual scripts, conceivable performances of victimhood and responsiveness to defendants.

Author

• Liv Navntoft Henningsen, Danish Institute for Human Rights