There has been an interesting case recently in the Swedish city of Örebro, where a man was acquitted of charges of attempted rape against a trans woman. The case has not been brilliantly reported, with the vast majority of the reporting focusing on the victim’s gender identity rather than the reasoning. Reports are here, here and here (be warned: not all of the reporting is in appropriate language.) There are others, but you get the gist.
Piecing it together, the account is that the woman was attacked by the man, who believed her to be a cisgendered woman. He attacked her violently, grabbed her crotch, and tore off her trousers before her ex-boyfriend came to her rescue and sat on the attacker until the police arrived.
The attacker was found guilty of the violent attack and sentenced to a period of time in prison (variously reported as four months, three years and four years) and ordered to pay approximately £2,000 compensation.
When it came to the attempted rape, the court found that his attempt could not have succeeded. This is the contentious bit – yet it’s not, even if UK law were applied, necessarily an indication of rampant disdain for LGBT people.
I did look up whether Sweden has the same gender-neutral definition of rape as does the UK, and the answer is yes: rape is the non-consensual penetration of mouth, anus or vagina. (In the UK, only a person with a penis can commit the offence as it is defined as penetration with a penis – in Sweden it is not so restricted.)
So if the court found that the attacker had intended to rape the victim anally, they could have found him guilty of attempted rape. They did not, though, emphasising that the attacker’s intention had been to perpetrate a vaginal rape (“We believe that he wanted to rape this woman in particular.” That being the case, no attempt could have been made as no attempt could succeed, as the victim did not have a vagina.
A similar issue could occur in the UK if the roles were reversed and the attacker were a trans man who committed a rape using one of the disturbingly lifelike appendages one can buy on the internet (don’t ask how I know this.) Would it be any comfort to the victim to know that s/he had not technically been raped, but only sexually assaulted? Clearly not, but that is how the UK law works as it must be an actual penis involved for the offence of rape to be made out.
I don’t think that the Swedish issue is confined to to trans women, either. If the victim was a cis woman with a condition which meant she did not have a vaginal opening, then the decision would at least in theory be the same. The attacker may have intended to vaginally rape her, but could not physically have completed the offence.
The Swedish judge certainly gets nul points for his comments that the victim “turned out to be a man,” which she clearly wasn’t. But this was not a case where the court realised that the victim was trans and simply chucked it out – the issue was whether an attempt can be an attempt if there is no possibility of the offence being completed.
It’s possible, or indeed probable, that the court could have found that in the absence of a vagina the attacker would have raped the victim anally. But had he made an attempt to do so, in the eyes of the law? Almost certainly not: his words and deeds beforehand (using the female pronoun, grabbing her crotch) suggested an attempted vaginal rape alone.
The Swedish courts deserve criticism for the judge’s inappropriate language (“she turned out to be a man”) and investigation as to whether their decision that no non-vaginal rape was attempted was influenced by their preconceptions of the victim (would the cis woman in the hypothetical example above have seen the same outcome?) But the outcome in itself shows only one of the most fundamental tenets of “attempts” in law, that is that an act “must be more than merely preparatory.”
The other point worth making is that if he had been charged with sexual assault he would probably have had no defence, as he hadn’t to the physical assault. But he wasn’t charged with that, he was charged with the greater offence of attempted rape. And that reopens the debate about whether it is better to charge serious assaults in a lesser category for the certainty of conviction, or whether to stick with the more serious charge out of principle, and risk an acquittal.