From intuitional to commonsensical conceptions of rape: a critical discourse analysis of gendered norms in legal decision-making behind a veil of objectivity

Abstract: The persistently high annual numbers of rape in Sweden and numerous legal amendments following internal critique, prove the legal response to be ineffective for the subjects of the protection of the law. Viewed in combination with the prevalence of detrimental conceptions of sexuality and rape, this actualizes questions regarding the potential for and shape of influences on the decision-making actors of law adjudication processes. This study explores the objectivity constructed in cases of rape, raising critique of its function as a veil under which non-legal discursive influences gain leeway beneath the image of flawless procedural conduct. While demanded through criminal procedure law to eliminate the influence of such factors, these practices thereby open for its intention’s antithesis. Using critical discourse analysis, techniques of objectivity are analyzed through the images and voices presented in the shape and content of verdicts of rape. A theoretical framework of Bladini’s theorization of objectivity and Baudrillard’s concept of simulacrum allows for insight into the spacious room created for legal interpretations and reframing. This space is thereafter targeted for further analysis of regularities in what is attributed and dispossessed of meaning, with emphasis on decisive factors, in light of Andersson’s and Hydén’s theorizations of rape and norms, respectively. The study shows two legal discursive orders on rape, separated by the occurrence of a preceding relationship between the parties. Following such findings, a structural alternative to the Hydénian conception of individual norms is presented, influenced by discourse theory to explain shared linguistic manifestations of normative expectations.