SHARE
COPY LINK

RAPE

‘Negligent rape’: Has Sweden’s sexual consent law led to change?

One year ago, Sweden introduced a law change that meant sex without explicit consent was considered as rape, including when the victim did not actively say 'no'. The Local spoke to experts to find out the impact this has had on court cases and within Swedish society.

'Negligent rape': Has Sweden's sexual consent law led to change?
Experts told The Local Sweden's sexual consent law has had an impact on court cases and in the way people discuss sex and consent in the media and in general.File photo of a Swedish courtroom: Jessica

The law change meant that participants needed to clearly demonstrate that they wanted to engage in sexual activity in order for it to be considered consensual.

Two new offences of “negligent rape” and “negligent sexual abuse” were created for acts where courts found that consent had not been established, but in which the perpetrator had not intended to commit rape or assault. Previously, a decisive factor for a rape conviction was proof that a perpetrator used force, threats, or taken advantage of someone in a vulnerable situation.

The law faced backlash at the time, and had to be clarified after Sweden's Council on Legislation said it was too unclear. Others criticized it as signalpolitik, meaning a policy implemented only for appearances and unlikely to make a real difference. 

Twelve months on, rights organizations say the law has had a measurable impact on court cases and helped change the national discussion on sexual autonomy – but warned there was still work to be done.

'Sweden needs to do more to convict rapists': Amnesty report
File photo of a police officer: Hanna Franzén/TT

'Negligent rape' sentences

“Earlier this year, we looked at 30 court judgments, and these included cases which definitely would not have been considered to be rape before the change in the law; where no violence or other means of force was used,” Katarina Bergehed, an Amnesty International expert in women's rights, told The Local.

Over the past year, the new law has been decisive in at least seven rape cases which went to court, according to an investigation by Swedish radio programme I lagens namn (In the name of the law).

The programme said that of 60 rape cases, the new law was crucial in seven, including six convictions of negligent rape.

A study from the Siren news agency reached the same conclusion, finding that in 84 cases where prosecutors mentioned “negligent rape”, 45 resulted in a rape conviction while six were sentenced for negligent rape. 

READ ALSO:

'Sleeping in the same bed and wearing only underwear does not mean consent'

One of these sentences was confirmed by Sweden's Supreme Court on Sunday, marking the first time the country's highest criminal court made a judgment relating to negligent rape.

The 27-year-old male plaintiff was found guilty of the negligent rape of a woman while staying overnight at her home.

The woman said had agreed he could stay overnight, but made it clear she did not want to have sex. Despite that, the man initiated sexual intercourse. 

Both the perpetrator and the plaintiff said that she was passive throughout the intercourse, and that they did not speak. The plaintiff said she “froze and did not know how to act”, while the perpetrator said he was not sure whether she was awake when he first initiated sexual contact, “but [he] had the impression that she wanted to have sex” and continued because she did not tell him not to. He also said that he stopped the intercourse when he thought she didn't want to continue.

In a statement accompanying its decision, 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. Furthermore, the court notes that the fact that the plaintiff and the perpetrator agreed to sleep in the same bed and that they were dressed in only underwear does not mean that the plaintiff voluntarily participated in the sexual acts.”

The man now faces two years and three months in jail, although this includes sentences for other crimes he was found guilty of. The penalty for the count of negligent rape was eight months’ jail, according to the Supreme Court.

Without the 2018 law, it is likely that the man would have been acquitted, since intent was previously required for a conviction of rape or sexual assault, and the Supreme Court found no evidence of intent.

Sweden's Supreme Court in Stockholm. Photo: Magnus Andersson / TT

'Greater awareness about consent'

The fact that Sweden's law now sets a clear boundary between consensual sex and rape or assault has also helped open up to discussions about sex and consent, the Swedish Association for Sexuality Education (RFSU) told The Local.

“There is increased awareness and a greater openness towards talking about [sexual consent] today,” said RFSU's Maria Bergström, when asked what changes she had observed since the consent law was passed.

“For example, we can see that this has made it easier for people who have previously experienced this to put words on what happened to them, and to then perhaps go further with reporting it or seeking support. The law has finally made it clear that one always has a responsibility to ensure that there is consent.”

“There is a much greater awareness and more conversations today on these questions among young men but also in the adult population — we also see that the question is raised by the media in a different way than before,” she said.

Bergström also mentioned the impact of the #MeToo movement in putting the question of consent and boundaries on the political agenda, as women from a wide range of industries came forward with their experiences of assault and harassment, all calling for tangible change.

READ ALSO:

Sweden in Focus: One year on, what did #MeToo achieve in Sweden?
A march for women's rights organized by #MeToo campaigners in Gothenburg. Photo: Thomas Johansson/TT

'Near impunity for rape'

While the 2018 law is one example of that change, Sweden is a long way from ensuring that all rapists face justice. 

According to the National Council on Crime Prevention (Brå), around 112,000 people were subjected to rape or sexual assault in Sweden in 2018, while only 5,593 such crimes were reported to police. And of those rapes reported to police, only around seven percent went to trial.

“We have near impunity when it comes to rape in this corner of the world that's normally regarded as one of the most gender equal countries, and we simply can’t have that,” said Amnesty International's Katarina Bergehed.

An Amnesty report earlier this year found that questioning was often delayed, and that DNA analyses could take as long as nine months to deliver.

“It’s crucial to deal with rape cases promptly. You need to secure evidence very rapidly otherwise it can disappear, and some evidence risks being deleted on mobile phones. Police are understaffed and resources are often drawn towards other crimes such as gang violence and killings,” said Bergehed. But she added: “The signals we’re getting is that the police are both willing and finally able to resource themselves to deal with rape in an efficient way.”

The Swedish police force announced last month that by next year, 350 investigators would be recruited to deal specifically with cases of rape, sexual violence against children and domestic violence.

Bergehed also pointed to the importance of changing attitudes towards sex and consent across all levels of society.

“Changing a law alone is not sufficient; you need police training, awareness in schools; the whole society needs to change,” she said. “There should of course be justice for rape victims once it happens, but the longer goal is to eradicate rape and sexual violence.”
 

Member comments

Log in here to leave a comment.
Become a Member to leave a comment.

ANALYSIS

10 things the Covid-19 crisis has taught us about Sweden

Over the 14 months since the Covid-19 crisis began to affect daily life in Sweden, both the pandemic and the national response have revealed some important things about Sweden and the Swedes, writes The Local contributor Chiara Milford.

Only some people wear a mask on the tunnelbana in Stockholm
Only some people wear a mask on the tunnelbana in Stockholm. Photo: Jessica Gow / TT

1. Swedish people aren’t as good at following rules as we thought 

Sweden has primarily used non-coercive measures to curb the spread of the virus, relying on individual responsibility to socially distance. But many regions have repeatedly reported low public compliance with guidance. 

Take the tunnelbana in Stockholm during rush hour and you’ll likely be met with a carriage full of mask-less commuters, despite the recommendations to keep a distance and wear a mask at all times. 

During the pandemic, many citizens did reduce their contact with others, or went into self-isolation, but some went in the other direction and protested the relatively relaxed restrictions. 

Perhaps Swedes are more rebellious than we previously assumed. 

2. Nothing will get in the way of the right to roam 

Freedom of movement is enshrined in the Swedish constitution and a global pandemic wasn’t going to stop that. While some countries imposed lockdowns, curfews and mandatory quarantines, Sweden didn’t. 

Although people were asked to “think about whether travel is really necessary,” many still went on skiing holidays during the winter peak in infections.  

The Public Health Agency has said that if they hadn’t allowed domestic travel for the summer holidays, people would have done it anyway – but in an uncontrolled way. 

Proof that allemansrätten (the “right to roam”) applies to more than just hiking. 

3. We may never use cash again 

When was the last time you touched a 100 kronor bill? The transformation to a cashless society was already well underway before the pandemic began (Sweden launched its first cashless, unmanned shops years ago), but it has certainly sped it up. 

Now, even more supermarkets have added automated checkout options or ask customers to avoid cash if possible, while several banks have raised the threshold on contactless payments.

4. Even Swedes can fall out of love with the government… 

Criticism of the government’s treatment of the pandemic has been rife, and trust in the government has fallen dramatically. Only 34 percent of the population thought Prime Minister Stefan Löfven was handling the crisis well in June 2020.

Many people within Sweden’s scientific and medical community have written op-eds criticising the government’s strategy. At the very start of the pandemic, over 2,000 academics signed an open letter imploring the government to impose stricter restrictions.

Anti-lockdown protest in Stockholm.

Anti-lockdown demonstration in Stockholm. Photo: Carl-Olof Zimmerman/ TT

5. …but criticising authority isn’t without backlash

Freedom of expression is also protected by the constitution, but that hasn’t stopped critics of Sweden’s strategy facing fierce backlash in the public arena, leading some to say they have stopped speaking in the media on the topic or have even left the country as a result. 

Norway’s state epidemiologist Frode Forland reported abuse after he said he did not agree with the Swedish strategy entirely. Readers of The Local have reported receiving xenophobic social media abuse after criticising the government’s strategy. 

And public health officials have also reported facing threats for doing their job, showing just how polarised and toxic the debate has become.

6. Education is genuinely important

Throughout the pandemic, Sweden made keeping schools open a priority. Schools  were never stopped on a nationwide level from offering in-person classes for children under 16, despite multiple outbreaks. On the whole, schools have adapted rather than closed, though distance learning was a possibility in cases where local authorities judged it necessary. 

Thankfully, doctors at the Karolinska Institute have found a low incidence of severe Covid-19 symptoms among children.

7. Swedish society is not as equal as we thought 

Like everywhere, in Sweden the virus exacerbated existing inequalities to deadly consequence. Covid-29 took a shocking toll on the most vulnerable parts of the population.

Poorer suburban communities suffered some of the worst outbreaks. Foreign-born people were not only disproportionately affected by the virus, but have also been vaccinated at a lower rate than native Swedes, while there have also been significantly higher mortality rates among groups with lower incomes and lower levels of education. 

None of this is unique to Sweden, but as a country frequently thought of as one of the most egalitarian societies in the world, it feels starker to see inequalities laid so bare. 

A couple hug and laugh as they have lunch in a restaurant in Stockholm,  just as the pandemic begins in April 2020.
A couple hug and laugh as they have lunch in a restaurant in Stockholm, just as the pandemic begins in April 2020. Photo: Andres Kudacki / AP Photo

8. Swedes need social contact more than we thought

While Swedish workers have taken to working from home quite well, rates of loneliness among unemployed people have skyrocketed during the pandemic. 

Despite bustling bars and cafes, many Swedes did stay home and older people reported feeling increasingly isolated. 

Although early on in the crisis, it was a common joke that social distancing wouldn’t be a problem for Sweden’s reserved population, the restrictions on socialising have taken a toll on mental health.

9. Lagom doesn’t work in a crisis 

Rather than clear rules, there has been confusing messaging around mask-wearing, gatherings, and the exact distance you need to keep, placing the burden of making risk assessments on individuals (is it 1.5 metres, two, or an arm’s length? Or is it an arm’s length?). 

Sweden’s recommendations have stood out while the rest of Europe has mostly responded to the pandemic with decrees, laws, and precise guidelines. Balance and lagom is great in many situations, but less so during a global pandemic. 

10. International media likes to oversimplify what’s happening here 

This past year has seen articles from big publications around the world either lauding the so-called “Swedish strategy” or calling it a disaster, often based largely on which narrative suits their domestic agenda. Pundits on all sides of the political spectrum have jumped on Sweden as a case-study for good or bad.  

This phenomenon is not new; aspects of Swedish culture have been misrepresented overseas for years, whether it’s Swedish immigration policy used as a horror story by right-wing politicians, local news stories overblown to present an inaccurate picture, or popular culture perpetuating stereotypes.

As usual, the reality is much more complicated than black or white. It will likely be several years before we can know the full impact of the pandemic here and elsewhere.

SHOW COMMENTS