Sweden OK's rape of transgender women

[Femboyurge]

It's probably a case of mens rea, yes. Didn't think of that before.

For a short period in the 1960's and 70's mens rea was even interpreted thus: if you tried to commit a crime but simply failed, you went free. So if you for example were going to commit arson but was unable to create a fire, you went free.

[lifeisfiction]

It's probably a case of mens rea, yes. Didn't think of that before.

For a short period in the 1960's and 70's mens rea was even interpreted thus: if you tried to commit a crime but simply failed, you went free. So if you for example were going to commit arson but was unable to create a fire, you went free.

Like I said it was complicated. To make things more muddled, arson used to be a burning or charing, of another person's property, of a dwelling at night. Yup, so it wasn't arson if you burned a store during the day, lol. Of course thats not the view of arson today. Like I said mens rea aka criminal intent is not something that makes any sense the first time you hear it. Law is not simple, neither is surgery.

I probably created more confusion then help.

[Femboyurge]

I was wrong about the sentence, btw. He got four months, not years.

[broncofan]

This is what's referred to as "impossibility", perhaps factual impossibility. This refers to a situation where the facts are such that the commission of the crime would be impossible, such as when you shoot a dead body thinking the person is alive. The predicate crime of murder is impossible but the mental culpability and therefore the intent still exists. This is somehow distinguished in law from inherent possibility which I won't go into. Usually factual impossibility does not exculpate.

It's a drawn out, complicated area of criminal law I don't remember, but usually the mens rea issue only occurs in legal impossibility. For instance if someone thinks sugar is illegal, and transports sugar across the border and sells it, there is no crime to charge them with. They did not do anything illegal nor attempt to do anything illegal even if they thought they did. This is to be distinguished from the person who buys sugar but thinks they have bought cocaine, and is in fact guilty of attempt (name narcotics based predicate crime).

I didn't read the actual facts of this case, but it doesn't sound like the judge is making a sound doctrinal argument. The person would only not be guilty of a crime of attempt if they thought they were doing something that is in fact not criminal, but which they mistakenly believed was. Since they thought they were raping a woman, which is apparently illegal, it should make out a crime of attempt. None of this should matter since male rape and female rape should be criminalized. Who knows, but the Swedish legal system may be ass-backwards.

[Femboyurge]

Yes, many people here praise Sweden, and Sweden is great in many respects, like education and medical care etc, but those first instance courts are usually not so great. Sometimes they act like lynch mobs in the Old West or like the Spanish Inquisition, sometimes they do things like this and give a piece of shit like this man 4 months and make him pay 15000 kronor (a little more than US$2000), when he so obviously was attempting to commit rape.

The Swedish jury system is also absurd. The jurors in the first instance courts are laymen, but they are not "ordinary citizens", like in the US, for instance, but politicians on municipal level. That means that a verdict can be "coloured" by the political views of the jurors, although in theory the sentences are thought to be in accordance with the view on justice of the "average Swede".

On third thought I think that mens rea doesn't apply here, since rape is always illegal in Sweden.

[lifeisfiction]

This is what's referred to as "impossibility", perhaps factual impossibility. This refers to a situation where the facts are such that the commission of the crime would be impossible, such as when you shoot a dead body thinking the person is alive. The predicate crime of murder is impossible but the mental culpability and therefore the intent still exists. This is somehow distinguished in law from inherent possibility which I won't go into. Usually factual impossibility does not exculpate.

It's a drawn out, complicated area of criminal law I don't remember, but usually the mens rea issue only occurs in legal impossibility. For instance if someone thinks sugar is illegal, and transports sugar across the border and sells it, there is no crime to charge them with. They did not do anything illegal nor attempt to do anything illegal even if they thought they did. This is to be distinguished from the person who buys sugar but thinks they have bought cocaine, and is in fact guilty of attempt (name narcotics based predicate crime).

I didn't read the actual facts of this case, but it doesn't sound like the judge is making a sound doctrinal argument. The person would only not be guilty of a crime of attempt if they thought they were doing something that is in fact not criminal, but which they mistakenly believed was. Since they thought they were raping a woman, which is apparently illegal, it should make out a crime of attempt. None of this should matter since male rape and female rape should be criminalized. Who knows, but the Swedish legal system may be ass-backwards.

Exactly Bronco, you know where I was heading. I didn't want to start confusing people, I just wanted people to understand their is more going then meets the eye.

The only problem is Sweden has some underlying criminal legal theories that are possibly starkly different than us. For example some countries like ours use the objective theory of contracts. Others use the subjective theory and some countries like Italy use both. Here looking on the facts there is something within their legal theory that makes the impossible doctrine a plausible outcome. I know there has to be a Swedish criminal lawayer who can fill us on the missing gaps behind Sweden's legal theory.

This is a porn board and while you and I could have tons of fun discussing we would certainly bore everyone.

[Helvis2012]

That's fucked up.