Social media were swamped with upset reactions to the court of appeal's verdict.
A district court had ruled that five of the boys raped the girl in the Stockholm suburb of Tensta. A sixth boy was charged with attempted rape. However, on Friday the court of appeal overturned the verdict.
According to prosecutor Jenny Clemedtson, the boys would have been charged in the court of appeals, too if only the stricter definition of the concept of "helpless state" that was introduced in July had come into effect in March.
New rape laws introduced in July 2013 replaced the concept "helpless state" with the concept "particularly vulnerable situation". The purpose was to ensure that situations where the victim responds to an attack by remaining passive can also be potentially classified as rape.
Retired criminal law professor Madeleine Leijonhufvud said there should be a demand to demonstrate explicit consent for sex in rape cases. However, the Swedish Bar Association (Advokatsamfundet) reiterated its position that it would be wrong for the law to reverse the burden of proof so that the accused would be required to prove his or her innocence. In Swedish law, it is up to the prosecutor to prove that the defendant is guilty.
In its statement, the court of appeal wrote that the prosecutor had stated that fear had put the girl in a helpless state. The court stated that, in order to be deemed to have been in a helpless state, the fear the girl felt should have been as incapacitating as, for instance, unconsciousness, heavy intoxication or physical injuries.