Straffrätt och kön

Sammanfattning: This thesis starts in feminist theory and the debate on sex/gender and knowledge. There are two lines of inquiry, one in criminal law and one in feminist theory that interconnect throughout the book. Their common grounds are the depiction of the individual. In criminal law “man” is found first of all on the theoretical level as part of legal theory. Criminal law is based on the traditional liberal ideal of the autonomous individual. When criminal law is applied legal reasoning also demands an idea of what a human being is. Legal reasoning is therefore always dependent on descriptions of both “man” and “reality”. Feminist theory, in turn, deals primarily with sex/gender issues. In an attempt to structure this field of research and to highlight important differences in feminist theory, three positions are presented. The three positions are defined in terms of the ideological aspects of the sex/gender debate, and the epistemological theories that can be related to these different ideological positions.Different descriptions of “man” and “reality” can lead to profoundly different conditions for legal reasoning. In the book it is the contradiction between the idea of sex as a role played by a neutral individual, and the idea of gender as a fundamental aspect of human life, that is used as a starting point for the analyses of legal arguments. One question that is raised is in what way the understanding of harm to the individual changes when the conditions for describing “man” are altered. In order to answer this question, selected committee reports on rape and physical abuse of women during the period 1958 to 2001, are analyzed. All of these are to various extents related to the question of harm to the individual. When judging harm in the given examples, the gendered individual is used as an alternative way of describing “man”. The study concludes that it is important for criminal law to recognize that women are sexually abused because they are women. This is fundamental to the way in which these crimes must be interpreted. But it is also important to stress that women are sexually abused in their capacity of being women. It is argued that this constitutes the very basis for understanding harm to the individual in these cases. Victims of sexual violence are always embodied, gendered and socially situated. It is therefore important to find ways to define harm to the gendered individual. In brief, the conflicts surrounding criminal law today can be understood as the dichotomy between the liberal ideal of the autonomous individual and the feminist ideology of difference. It is therefore argued that there is a need for an ethical theory that includes the gendered individual.