The void of the victim story – doubt and certainty in rape cases with missing victim stories

Sara Uhnoo, Åsa Wettergren, Moa Bladini, University of Gothenburg

This paper analyses epistemic emotions in legal evaluation of rape cases where crucial parts of the victim story is missing.

A rape legislation requiring voluntariness, effective in Sweden since July 1 2018, challenges popular norms around ‘real rape’. It widens the criminalization of sexual acts to where an active party fails to secure consent from the other, leading to an increase in ‘word-against-word’ cases where technical evidence is lacking.

The legal method of evaluation then begins with the victim’s story, tested against:

1. Assumptions about ‘credible story-telling’;

2. Assumptions about victim-adequate emotive-cognitive behaviour after the event, evidenced by
a) objective circumstances like calling 112, or b) witness testimonies.

If the victim’s story is deemed credible/reliable, it becomes a baseline for the court’s evaluation of the defendant’s story.

With an emotion-sociological framework, our analysis interprets the chain of evaluation in terms of according ‘ontological trust’ to the victim’s story by submitting it to a ‘certainty-doubt-test’ and if certainty is reached, the story is effectively deemed ‘true’. Flawed victim stories, where there is no memory of the actual event, may per se indicate rape because the accused has taken advantage of a victim in ‘a vulnerable state’ of e.g. intoxication. However, when a story is flawed, ‘ontological trust’ cannot be secured. For lack of supporting evidence, the defendant’s claim that sex was voluntary can only be refuted if the victim claims to remember.

The analysis highlights emotional orientations of the rational legal evaluation method and its sometimes irrational consequences in rape cases.