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- Martinsson, Dennis, 1986-
(author)
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Om straffrättsvillfarelse
- 2016
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Doctoral thesis (other academic/artistic)abstract
- This doctoral thesis examines mistake of law from a Swedish criminal law perspective. The research has two main objectives: (1) to analyse the Swedish provision on mistake of law, and (2) to explore and analyse how to distinguish between mistakes that are relevant for the application of the intent requirement and mistakes that are relevant for the application of the provision on mistake of law. Mistake of law is, in Swedish criminal law, considered as an exculpatory circumstance, which means that the actor is excused, even though he or she committed an unlawful deed. The provision on mistake of law is regulated in the Swedish Penal Code chapter 24 section 9. In order for the defendant to be excused, the provision states two preconditions: (i) it must be a case of a misapprehension, and (2) this misapprehension must be manifestly excusable. In this thesis, I scrutinise both of these preconditions. I argue that it is important to differ between whether it is a case of misapprehension and whether the misapprehension is manifestly excusable. When determining if the misapprehension is manifestly excusable or not, the defendant has traditionally been excused when the mistake typically is deemed to be exculpatory. However, due to the wordings of the provision on mistake of law, I argue that it is possible to excuse the defendant also in other situations than the traditional ones. Furthermore, when determining whether the misapprehension is manifestly excusable, the legal sources suggest that this is a form of a culpability requirement which basically means that the defendant is excused when he or she conducted some kind of investigation of whether a certain deed was lawful or not. According to the findings in this thesis, this can explain most – but not all – cases where the defendant is excused. This idea must, however, be supplemented with other reasons as to why the defendant is excused. Therefore, I suggest that there are situations where the defendant can be excused although he or she did not investigate the lawfulness of a certain deed. When exploring the difference between mistakes that are relevant for the application of the intent requirement and mistakes that are relevant for the application of the provision on mistake of law, it is important to note that such an analysis can only be fruitful if it focuses on certain preconditions in certain offences. Thus, this thesis discusses this matter by a range of selected offences where this distinction becomes more interesting than in relation to other offences. In this part, I stress that the design of the scope of the intent requirement will determine whether a mistake in relation to a certain precondition in a certain offence, will be treated as a mistake which is relevant to the application of the intent requirement or a mistake of law. Furthermore, I underpin that the intent requirement can be designed as more or less qualified, which means that the intent requirement sometimes is deigned in such a way that it is enough if the defendant’s intent covers the factual basis of the necessary precondition and sometimes is designed in such a way that the defendant’s intent must cover the correct (or nearly correct) conclusion that a certain deed, in legal terms, was unlawful. However, the scope of the intent requirement can only be determined by analysing each and every precondition in each and every offence. Thus, this cannot be determined by an overarching method.
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3. |
- Andersson, Malou, 1973-
(author)
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Grov fridskränkning och grov kvinnofridskränkning : Fridskränkningsbrotten som rättslig konstruktion
- 2016
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Doctoral thesis (other academic/artistic)abstract
- Over the last decades men’s physical and psychological violence against women in intimate relationships (domestic violence) has become a central issue in Swedish politics. Men’s physical and psychological violence against women is generally be understood as including physical, sexual and psychological violence (e.g rape, battery, sexual abuse or insults) that occurs within the family, whether or not the perpetrator shares or has shared the same residence with the woman. Law reforms have been carried through with the objective of enhancing criminal legal protection for women. In 1999, a new law came into force within the framework of chapter 4 of the Penal Code which includes any member of the family with the objective to treat acts that are already criminal from a different perspective if they are committed within a pattern of systematic physical and psychological violence.This doctoral thesis examines the concept of domestic violence and the criminal act in Chapter 4, section 4 a of the Swedish Penal Code which prescribes liability for violation of integrity offences. According to the first paragraph, a person who commits criminal acts as defined in Chapters 3, 4, 6 or 12 or of the Swedish Penal Code (e.g. rape, battery, sexual abuse or insults) or violation of a restraining order against a person with whom they have or have previously had, a close relationship will be sentenced for gross violation of integrity to imprisonment for at least nine months and at most six years if each of the acts were part of a repeated violation of the person’s integrity and the acts were liable to severely damage the person’s self-esteem. The second paragraph states if the acts were committed by a man against a woman to whom he is, or has been married or with whom he is, or has been cohabiting under circumstances comparable to marriage. He will instead be sentenced for a gross violation of a woman’s integrity to the same punishment. The objective of introducing a violation of integrity offence was to enable criminal proceedings to take in to account the abused person’s entire situation when he or she has been subjected to a series of albeit punishable but often individually relatively minor acts and to bring about an upgrading of the penal value of such acts. The main purpose of this thesis is to examine when and under which circumstances a person can be held responsible for gross violation of integrity or gross violation of a woman’s integrity. The analysis aims at the construction of the law, but also to examine the legal and social consequences and the interpretation and application of the law.
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