The Swedish Law of Sexual Consent

I’ve been watching the interesting Martin Scorsese documentary series on Netflix called ‘Pretend it’s a City.’ The programme is based on a series of interviews with sardonic writer Fran Lebowitz. In one episode, she talks about MeToo, and how when a woman accuses a man of rape the focus has shifted from ‘prove to me that she’s telling the truth’ to ‘prove to me that she’s lying.’

This is merely a change of perspective in most places and not enshrined in law. Except in a few countries, including Sweden. In 2018, a new law was introduced in Sweden – called the samtyckeslag – the Law of Sexual Consent. The basic principle of the law is that sex should be voluntary and that sex without explicit consent is considered rape. This applies whatever the gender.

The Swedish verb for ‘to rape’ is ‘våldta’ which literally translates as ‘to take by violence’. This reflects the previous definition of rape which involved some form of violence, force or threat or that the victim had been in a vulnerable position. An important part of the previous legislation was that the victim decisively said ‘no’. Since 2018, this is not the case.

A crime called ‘negligent rape’ was introduced which is a sexual act that occurs when there has not been an explicit statement of consent, but in which the perpetrator had not intended to commit rape or assault. In other words, before sex there has to be a clear ‘yes’ or active demonstration of consent. If there isn’t, it is rape.

Today, if a woman accuses a man of rape, she does not have to provide evidence that he was violent or coercive, that she had to fight him off or prove that she said ‘no’. The victim does not have to prove she is telling the truth, the accused has to prove she is lying.

The new law has been significant in many convictions in recent years. In one case, the Supreme Court wrote: ‘A person who is subjected to sexual acts against their will does not have any responsibility to say no or express their reluctance in any other way.’

So a ‘yes’ is a ‘yes’. And a lack of a ‘yes’ is a ‘no’

Buying sex in Sweden

In a recent police raid, over 40 men were arrested at temporary brothels in Stockholm. They were charged with buying, or attempting to buy sex. The brothels, which are also illegal in Sweden, were shut down.

So what is Sweden’s policy on prostitution? Well, it is criminalized and in fact Sweden has a trail-blazing approach to prostitution. In 1999, the Sex Purchase Act came into existence. This Act makes it illegal to purchase “sexual services” but not to sell them. So the purchaser is the criminal and not the prostitute. The rationale for criminalizing the buyer, but not the seller, was stated in the 1997 government proposition, namely that “…it is unreasonable to also criminalize the one who, at least in most cases, is the weaker party who is exploited by others who want to satisfy their own sexual desires”.

This law has since been copied and put in place in various other countries, such as Canada, Norway and Iceland. According to the statistics, the law has seen a huge decline in prostitution and trafficking, although it is by far not eradicated.

According to journalist Meghan Murphy, who has written extensively about prostitution- ‘The Swedish model is about more than just changing the law. It is also an idea — it is about changing the culture, and the culture is what needs to change as well as our legislative approach. What the model and its proponents are saying is that men are not entitled to access the bodies of women and girls, even if they pay.”

However, the law is controversial and is not without its critics.

Those who criticize it claim that the law isn’t as effective as people think and that sex work in Sweden is just driven more dangerously deeper underground. They also claim the law strips women of their control and their rights to do with their body as they wish to. An article on mic.com says ‘Sweden’s belief that prostitution is the most brutal expression of patriarchy has engendered a kind of paternalism about commodified sex that holds men responsible for their actions while assuming women can’t be. It wipes out the possibility of gray areas for men and women to be equal partners in exchanging money for sex.’ In other words, according to them, the feminist-driven Sex Purchase Act is entirely unfeminist.

So, the age old debate carries on. The discussion about if prostitution is inherently exploitative. Should it be criminalized, or can it be developed to maximize equality for everyone involved? In Sweden, the buyer is criminalized. In most other countries, the seller is criminalized. In Germany, Holland, Austria, Switzerland, Greece, Turkey, Hungary and Latvia prostitution is legal and regulated. Different approaches to the same situation.

What do you think?

When Sweden lays down the law

The international spotlight has been shone on Sweden’s judicial system in recent weeks. An American rapper is currently being held in custody on suspected physical assault. The President of the USA has intervened and tried to get the rapper released on bail – to no avail. Consequently, Sweden has been accused of corruption and racism.

I thought in this blog, I’d quickly clarify a few things about Sweden’s legal system so that you understand the holding of the rapper is fully compliant with the law.

The Swedish system. Sweden has a civil law system based on Romano-Germanic law. Sweden’s criminal courts have three levels: The Supreme Court of Sweden (Högsta Domstolen), 6 courts of appeals (hovrätter)and 53 district courts (tingsrätter).

The Constitution of Sweden prohibits capital punishment, [1], corporal punishment [2], and “torture or medical influence aimed at extorting or suppressing statements.”[3] Searches and seizures are restricted under Article 6 of the Constitution of Sweden.

When somebody is arrested, police and prosecutors are responsible for conducting initial investigations to determine whether an individual should be prosecuted for a crime – and which crime. Prosecution is mandatory if guilt has been established through the investigation period.

A defendant is entitled to counsel as soon as reasonable suspicion is established during the investigation stage. The defense attorney may ask the prosecutor to conduct specific investigations on the defendant’s behalf.

Any witness may be interrogated for up to six hours. In some jurisdictions such as Gothenburg, the local municipal council hires lay individuals to attend and document interrogations.

No bail system. There is no bail system in Sweden, where somebody can pay a bond to avoid pre-trial detention. Bail is more common in the Anglo-American judicial systems and not the European continental systems. In Sweden, individuals are often detained while awaiting trial, although they can be released without detention and have their travel restricted by court order. If there is a risk of fleeing the country, suspects can legally be kept in police custody by court order until investigations are complete. This is common praxis when it relates to foreign citizens with no residence in Sweden.

Once the initial investigations are complete, a court of law decides what the individual should be charged with, and the trial proceedings commence.

Independent Court of Law. In Sweden, and Finland, the legal system is totally independent and free of influence from political leaders. Members of the government or cabinet may not dictate or interfere with the daily workings of a government agency, court of law or similar. While this is common practice in other countries, in Sweden, this so-called ‘ministerstyre’ is illegal.

When Donald Trump called Sweden’s Prime Minister Stefan Löfven, the Swede explained that the Swedish judicial system, prosecutors and courts are totally autonomous. Everybody is equal in the eyes of the law and that the Swedish government will not and can not try to influence the legal process.

Let’s see what happens. If the rapper has been held in custody incorrectly or if he is charged with a crime that does not warrant incarceration then he has a right to claim compensation.