The following thesis concerns the relatively new phenomenon, in which a perpetrator who has not been in physical contact with the victim is convicted of a sexual crime which according to the wording of the crime requires intercourse or a relationship of a sexual-like nature. Probably the best known of such sexual crimes is found in § 216 of the Danish Penal Code, which is the pro- vision on rape. This provision will thus also be the primary focus in conjunction with § 225 of the Danish Penal Code, which enables the courts to rule on sexual crimes that require sexual inter- course when only a sexual act other than intercourse has occurred. The thesis seeks to elucidate the extent to which it is possible to convict a perpetrator of rape even though they have not been in physical contact with the victim, thus committing a rape from a distance. Based on the findings, the thesis thereafter discusses whether Danish law in this legal field should be changed or not.
The thesis accomplishes the above by doing the following. The thesis analyses the Danish Appeal Court’s ruling in case TfK 2013.209 V as well as the Local Court’s ruling in case S-7- 1882-2020 (“Esbjerg-sagen”). Afterwards several Appeal Court- and Supreme Court cases from Norwegian and Swedish case law will be addressed in order to compare the findings to the find- ings from Danish case law. The comparison between the state of law in the three countries will then act as a basis for the discussion of whether Danish law in this legal field should be changed or not.
First, the subject of the thesis, as well as its purpose and problem, will be introduced. Also, the relevant sources as well as the legal methodology are presented in context to each other. Subse- quently, the thesis sets out the legal framework for the legal dogmatic analysis of the thesis, where the relevant concepts and provisions used in the thesis, as well as their material scope, will be described and explained. As the first aspect of the legal dogmatic analysis, the thesis presents the prevailing understanding of rape and sexual acts other than intercourse, where case law is ad- dressed and analysed to determine the lower limit for when the provisions can apply when the sexual crime occurs in the physical presence of the perpetrator and the victim. Next in the legal dogmatic analysis, the thesis focuses on determining the legal status of when it is possible to convict a perpetrator for rape at a distance. Afterwards, the thesis then describes and analyses Norwegian and Swedish case law in this area in order to do a comparative analysis between Dan- ish case law and Norwegian/Swedish case law. These results are then applied to considerations in relation to whether the Danish legal status around rape from a distance should be changed, either in the form of a revision of the law, or interpretation of the law, so that the legal situation in the area follows the development of society.
Finally, the thesis concludes that in Denmark it is possible to convict a perpetrator of rape even though they have not been in physical contact with the victim. However, in order to rule such conviction, the sexual act which the perpetrator has forced the victim to do to themselves has to include insertion of fingers or objects into the genitals or anus. This is contrary to both Norwegian and Swedish case law in the legal field, where several differences are seen. Based on these find- ings, as well as further discussion points made in chapter 8, it is concluded the Danish Penal Code should be changed, so that there is a more specialized law provision to cover such instances which at the current moment gets ruled as rape from a distance.