Sexual Offences

Reported Sexual Offences

The graph shows a dramatic increase (by 534%) in reported sexual crimes in Sweden since 1975. In the same time period, Sweden’s population grew by 15% (scroll down for more statistics).

Sweden’s debate about ’consensual rape’

Under Swedish law, consensual sex can be classified as ’rape’. What matters is not whether the complainant said ’no’ (or implied it) but whether the perpetrator uses force or the threat of force, or he takes advantage of the victim’s helpless state.

If there is no proof of force or threat of force, the judges will consider the intent of the perpetrator. In practice this leads to many cases of ’word against word’ in which the man will have to prove his innocence. This reverses the burden of proof that is basic to criminal trials in Western legal systems, in which the accused is innocent until proven guilty.

As he leaves his lawyer Leif Silbersky’s office in downtown Stockholm, a feverish Julian Assange is ambushed by the tabloid Expressen (that broke the story of the accusations) and questioned on camera.

Consensual sex in the Assange complaint

A preliminary investigation is directed at Julian Assange with regards to an allegation of ’minor rape’ in the context of consensual sex. The allegations against Assange are the consequence of legislation changes in Sweden that have stretched the definition of rape.

Sweden has three categories of ’rape’:

  • gross rape (4-10 years imprisonment)
  • ordinary rape (2-4 years imprisonment)
  • minor rape (0-4 years imprisonment)

According to the evidence submitted to the court by Assange’s defence counsel Björn Hurtig, a charge of ’minor rape’ implies "almost no violence or threats or injury where consensual sex is followed by sex without withdrawal of that consent but where the complainant is asleep or unconscious."

The Swedish prosecutor, Marianne Ny, sought an arrest warrant for Julian Assange for ’ordinary rape’, but this was downgraded to ’minor rape’ at the Svea Court of Appeal on 24 November 2010.

The fact that the sex was consensual in all of the events is not disputed. One of the complainants, AA (Expressen, 21 August 2011), stated that both she and SW had consensual sex with Assange.

Complainant AA’s statements to the tabloid Aftonbladet (21 August 2010) also deny criminal intent on Assange’s side or threat/use of force. According to complainant AA:

"It is completely false that we are afraid of Assange and therefore didn’t want to file a complaint. He is not violent and I do not feel threatened by him." - Complainant AA

Swedish rape laws

"Sweden’s definition of legal rape includes the idea of ’unlawful coercion’, which involves exerting emotional pressure on someone to have sex. In other words, talking someone into bed. A man in Assange’s position of wealth and power would be particularly vulnerable to this form of ’rape’, which carries a possible four-year sentence, because it could be argued that his status allowed him to exert an inordinate level of influence.

Needless to say, I disagree with the notion that falling for a "good line" or being gullible is the same thing as being raped. Indeed, as a woman who has been raped, I am deeply offended by the suggestion that the two scenarios are in any way equivalent." Sweden’s law trivializes the brutal crime of rape and leaves nonviolent men open to unjust imprisonment."

The laws on rape and sexual violence have changed over the past two decades. Many of these laws have been progressive in some respects. But in others the changes in the law fail to provide sufficient guarantees for due process for those suspected of sexual offences (Fair Trial for Julian Assange?). These changes have received ample criticism from Swedish legal commentators and victims of wrongful convictions, like Billy Butt.

Minister of Justice Beatrice Ask making her case for naming and shaming men suspected of buying sex.

In 1999 Sweden partially outlawed prostitution by criminalising the buyer rather than the provider. The reform has not reduced prostitution. The current Minister of Justice Beatrice Ask made a statement in March 2010 suggesting that men suspected of buying sex should be named and shamed. Bright-coloured envelopes could be sent to their homes, so that their children and wives could see them, she suggested. "It is a little like being shamed on the town square... In practice maybe we can’t have coloured envelopes, but we have to show who they are and let those around them know." She received criticism for the statements, not least from the former Minister of Justice, who called for her resignation: "Sweden cannot have a Minister of Justice who is unable to comprehend the principle of innocent until proven guilty".

The revisions of the Sexual Offences Law have been ushered by Sweden’s experts on sex crimes such as prosecutor Marianne Ny (Prosecutor in the Assange case), former Minister of Justice Thomas Bodström (of the law firm Bodström&Borgström, representing the complainants against Assange), and former Equality Ombudsman Claes Borgström (lawyer of the complainants, of the law firm Bodström&Borgström), among others (see the Court Administration report from 2001). These changes have been ongoing for over a decade.

Claes Borgström (lawyer for the two complainants against Julian Assange) input into legislation changes in 2005. As Equality Ombudsman he was commissioned to report on proposed changes that would raise the number of reported ’rapes’ and ensure that complaints are followed through to a conclusion. Borgström stated "Everyone we have spoken to says this will increase the incentive to report attacks".

Borgström and Bodström, who founded their current law firm together in 2007, continue to spearhead revisions of the legislation in Sweden’s laws regarding sexual offences. In April this year, Borgström and Bodström announced the proposal for a new criminal classification: ’aggravated rape’, which would carry a prison sentence of 6-10 years: "Since it is almost exclusively women who are affected, we believe this is an important gender issue". Borgström and Bodström also proposed elevating the classification of pimping to human trafficking, and entitling ’victims of the purchase of sex’ to receive compensation.

Statistics - reported rapes and convictions in Sweden

In Sweden, reported cases of ’sexual violence’ have increased dramatically since 1975 by 534%. UN statistics from 2010 show this epidemic of ’rape’ reports. In 2008, Sweden had 53.2 reported ’rapes’/100.000 people per year (compare to Finland 17.2, Norway 19.8, Denmark 7.3). Sweden’s rates of reported rapes are over double those of the UK. By way of comparison, Sweden’s homicide rates were lower than its Scandinavian partners (save Norway - see UN Statistics on international homicide rates for 2007 and 2008 (last available stats)).

The stated objective by the Minister of Justice that oversaw the biggest changes in the sexual offences laws over the past decade - Thomas Bodström (partner in the lawfirm Bodström&Borgström representing the complainants against Assange) - was to raise the conviction rate (see the graph at the top of this page).

While the conviction rate has not risen commensurate with the soaring numbers of reported rapes, Sweden has achieved the third highest per capita rape conviction rates in the Council of Europe, and the second highest in the EU after Lithuania (Council of Europe’s European Sourcebook of Crime and Criminal Statistics 2010). The number of convictions for rape in Sweden trebled between 2004 and 2005 (from 1.7 to 4.9 per 100.000 people) as a result of the broadened definition of rape in the 2005 change to the legislation.

The number of people convicted for rape per 100.000 people was around three times higher in Sweden than in England and Wales in 2006, and three times the European median.

Latest Conviction rates available (2006)

Country - Conviction rate/100.000 people

  • Median - Council of Europe: 1.6
  • Lithuania: 5.4
  • Russia: 4.9
  • Sweden: 4.7
  • France: 2.9
  • Portugal: 0.5
  • Finland: 1.6
  • UK: England and Wales: 1.6
  • Netherlands: 1.7
  • Denmark: 1.1

The number of reported rapes far outpaces the number of convictions. Despite the extraordinary rise in conviction rates, Sweden was criticised in two recent reports for their reported rape vs. conviction ratio, one commissioned by the European Commission (2009) and one by Amnesty International (2008).

Amnesty International’s report condemned Sweden’s non-transparency in investigating and prosecuting reported ’rape’ cases, identified flaws in the investigation and subjectivity in the decision of whether the case should proceed or not:

  • "the evaluation and analysis of rape cases is largely dependent on the motivation, knowledge and attitude of the investigators."
  • "Amnesty International is concerned that a lack of prioritization and a lack of knowledge and training on how to interrogate witnesses and suspects, and how to secure the necessary evidence, may harm the quality of the investigation [emphasis added]."
  • "The assessment of the credibility of the victim and the accused, and the reasons for deciding whether to close the case or to proceed, are largely non-transparent ... Informal discussions concerning the credibility of the victim and the alleged perpetrator and whether the case will hold up in court or should be closed do not maintain the principle of due process of law [emphasis added].’

Subjectivity, non-transparency, lack of predictability and weakened safeguards seriously undermines the system for all involved - complainants and suspects. Amnesty International’s findings echo greater systemic problems in rape investigations - these have been addressed in a number of articles and a recent official report on failing standards in preliminary investigations (see Rule of Law, and Investigation). Furthermore, Swedish lawyers and jurists have denounced the subjective manner of adjudications in word-against-word rape trials (read more about due process in criminal proceedings in Sweden, in Fair Trial for Julian Assange?).

Criticisms of the reformed sexual offences law 2005

The changes to the Sexual Offences law implied:

- A greater amount of criminal acts will be classified as ’rape’. The threshold of what constitutes coercion is lowered.

- When someone has sex with a person that is in a helpless state because of unconsciousness, sleep or being under the influence of drugs, it will be considered to fall under ’rape’.

The lawyer Elvy Wicklund criticised several aspects of the new law:

- "the present law identifies all men as potential rapists, or males brimming testosterone who cannot control their urges, which is an insult to most men that are not this way"

- The law was passed too hastily (Johan Stenberg, Appeal Court Judge, Göta Hovrätt)

- Although more criminal acts are classified as ’rape’, the difficulties regarding proof remain (Bengt Sjögren, Appeal Court Judge, Svea Hovrätt); and difficulties of determining intent remain (Karolina Lindenkrantz).

Several legal experts have argued that the changes to the law and the general climate in Sweden when it comes to ’rape’ cases has removed due process safeguards and made it too easy to sentence a man for sexual offences. See Fair Trial for Julian Assange?.

Mandatory expression of consent - the latest proposal for reform

Several new proposal has been tabled for the reform of sexual crimes legislation. Marianne Ny is one of the legal experts behind this new proposal, together with Nils-Petter Ekdahl.

The more controversial of the new reform proposals is the mandatory expression of consent prior to intercourse - the test of how consent is given has not been defined, although verbal and even written consent have been discussed as possibilities.

This stringent proposal is defended by Madeleine Leijonhufvud. It is meant to protect victims of ’frozen fright’, where the ’perpetrator’ does not need to use force or the threat of force. The proposal (SOU 2010:71) has been on referral to the Swedish National Courts Administration, the Prosecutor General and the lawyers association have rejected the proposal in its current format.

The debate about the need to introduce consent as a consideration in the sexual offences law has been ongoing for several years. Göran Rudling, the witness in the February Hearing (he was the person who first came across complainant AA’s deleted tweets, see Evidence Destroyed) has been campaigning for rape victims’ rights through the incorporation of consent into the law.

1234 days under house arrest.

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On 9/10/2012
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16:11 – @austingmackell Fair point but, of greater concern is prosecutor abusing position, irregularities, Swedish politicians interfering in case.
16:07 – Claes Borgstrom on woman SW: It doesn't matter if they don't think they've been raped: they're not jurists. #svpol

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