In 2018, Sweden introduced a so-called 'consent law' (samtyckeslagen), which changed the legal definition of rape.
Previously a factor such as threat, force, or the victim having been taken advantage of in a vulnerable situation (such as under the influence of drugs or alcohol) was necessary for a rape classification. Under the new law, both participants need to have actively signalled consent either verbally or otherwise.
With this law, Sweden became the tenth country in western Europe to class non-consensual sex as rape. Iceland introduced similar legislation the same year, with Greece following in 2019.
It was a move welcomed by organisations campaigning for women's rights and against sexual violence, including Fatta, Unizon, and Amnesty International.
“The boundary between sex and assault is based on whether or not there's consent, so you need a law that also regulates that,” Olivia Björklund Dahlgren, spokesperson for non-profit organisation Fatta which campaigns against sexual violence, told The Local.
“One of the most important effects is that those who are victims are no longer as inclined to feel it was their fault. We see that as incredibly important and we hope to see more of that; a societal change where focus and responsibility is placed on perpetrators […] It is important that the legislation changed, partly so that more cases are covered by the law, so assault becomes punishable and those who experience it get justice.”
This is backed up by a newly published report from the National Council on Crime Prevention (Brå), which shows that since the introduction of the law, rape reports and convictions in Sweden have increased, including many cases which would not have been classed as rape at all under the previous law.
No means no, and the law change meant that a lack of a 'no' doesn't automatically equal a 'yes'. Photo: Fredrik Sandberg/TT
In 2017, 4,895 alleged rapes were reported, which increased to 5,930 by 2019, although this is partly a continuation of a long-term trend pre-dating the law change.
Looking at convictions for rape, the rise is even sharper; a 75 percent increase over two years. Convictions rose from 190 in 2017 to 225 in 2018 and then to 333 in 2019, after the law change in July 2018. Most of these still included factors that were previously necessary for a rape charge, such as force or threat, but 76 were considered 'new' cases that couldn't have been classed as rape before.
“Reported rapes have gone up steadily for several years, we think that's due to growing awareness in society [around what constitutes rape] and the #MeToo movement, and we think it's more about increased motivation to report the crime than actual increase in the crime,” Brå research advisor Stina Holmberg told The Local.
“But when it comes to convictions for rape, that hasn't been a long-term increasing trend. It goes up very sharply exactly after the law came in.”
Simply, more cases of non-consensual sex can now be prosecuted as rape, and they stand a greater chance of conviction without the need for proof of force, threat, or violence.
Holmberg said: “This includes cases where the victim has said 'no' very clearly, even cried, but the perpetrator has continued. There were cases like that before, but they never led to a conviction in court. There are others where the victim is frozen in fear, goes passive and doesn't say or do anything. These cases could not have been prosecuted as rape before the law change.”
Of 36 prosecutors interviewed by Brå, the majority (31) said the law change had had a positive impact, particularly the fact it set out in Swedish law that a failure to say 'no' was not sufficient to imply consent.
Outside the legal system, campaigners believe the law has helped open up discussions and set clear boundaries in society. This may in turn have encouraged more rape survivors to report their assaults.
The Swedish Association for Sexuality Education (RFSU) has previously told The Local that the law helped open up discussions around consent, making it easier for people who had experienced assault to define what happened to them and either report it or seek support.
At a demonstration in 2013, signs say 'We demand preventative work against rape' and 'stop raping'. Photo: Bertil Enevåg Ericson/TT
But legislation alone isn't enough to ensure that more survivors report their assaults, nor to ensure that fewer assaults are carried out.
When announcing the new law, the government noted: “To effect real change, the legislation must gain traction throughout society.” Alongside the changes to rape laws, Sweden's Crime Victim Compensation and Support Authority was given 5 million kronor to produce information and education campaigns on sexual offences and consent, including an online course, social media publicity campaigns, and a guide for teachers.
These additional measures were welcomed by Amnesty International as a sign that the move was not a mere signal but also a catalyst for real change. But the organisation warns that it will take a long time to see results in terms of lower incidence of sexual assaults.
“The law is still rather new and it normally takes a number of years to get a complete picture. I remain hopeful that there will be normative change in the longer term. But nothing yet in criminal statistics suggests this has happened; reported rapes are still increasing, and it's very long-term work to change values and attitudes around sexuality and sexual behaviour,” Katarina Bergehed, Amnesty International's Senior policy adviser on women's rights in Sweden, told The Local.
It is still the case that only a small proportion of rapes are reported to police at all. 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.
To achieve a greater impact, Bergehed said it's important that other parts of the system are reviewed and improved to ensure that rape survivors receive sufficient support and the chance to obtain justice, including the healthcare system, trauma care, and the police.
“There is still work to be done within the police when it comes to how these cases are investigated. Amnesty welcomed an initiative announced last year where the police said they'd recruit new staff to investigate only crimes like sexual crimes and domestic violence, to strengthen the capability of police to prioritise them and ensure a high quality investigation. There is definitely room for improvement there, and also in the type of trauma care that victims are able to access,” she explained.
The rise in reported rapes is not thought to be due to an increase in the number of rapes carried out, but there is also no sign that fewer rapes are being committed despite new legislation and information campaigns. Photo: Janerik Henriksson/TT
There are also inherent difficulties in working with rape cases where there was no force or violence. It requires a new way of working and is harder to assess evidence.
Brå spoke to police officers who were experienced in working on this type of case, who said that the law change had affected the way they work. One of the biggest changes was more detailed questioning of people involved. Some of the officers questioned said this could increase reluctance of victims to report crimes, due to the need to share intimate details, but others felt “the detailed questioning shows that the police are taking it seriously”.
Of the 'new' cases that were taken to Swedish courts, around half the suspects were acquitted. The greater reliance on witness statements makes it more difficult to secure convictions, but Holmberg stated that this is not necessarily a flaw.
“It is difficult to prove what has happened in the new cases. That was already a problem [in rape cases] but with the old laws, there were more often injuries of the victim, or you could take an alcohol test and see the victim was very intoxicated. The new cases are harder to prove, but it's important for justice that the level of proof should not be too low.”
As well as expanding the definition of rape, the 2018 law change also saw two new offences of “negligent rape” and “negligent sexual abuse” introduced to cover acts where courts found that consent had not been established, but in which the perpetrator had not intended to commit rape or assault.
In 2019, only 12 of the convictions were for negligent rape, which Holmberg said was due to the difficulty of providing proof in such cases. Another factor suggested in Brå's report is that since this is a new law, courts may not be fully aware of where this offence can apply, and therefore plaintiffs are either acquitted or charged with rape rather than with negligent rape.
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And Fatta spokesperson Olivia Björklund Dahlgren said one concern was that rapes may be 'downgraded' to negligent rape. “It is hard to determine if someone had the intent or was grossly negligent. The risk there is that courts might be 'careful' and judge rapes which should be judged as rape, as negligent rape instead. We at Fatta think this could be countered if the current requirement that the negligence must be 'gross' is removed, so that all negligence is covered,” she said.
Brå's report put forward several concrete recommendations around how the legislation could be improved to mitigate any risk of jeopardising the rule of law. This included clarifications around the boundary between deliberate rape and negligence, which Brå said should be decided in Sweden's Supreme Court.
“We have seen difficulties when it comes to deciding both how far the punishable area extends, and what should be considered as intent as opposed to gross negligence. These problems risk jeopardising the rule of law. Therefore, it's important for there to be more decisions in higher courts to set precedents. What needs to be clarified most of all is what should be considered as an expression of voluntariness, and what should not,” said Holmberg.
“The line between what is negligence and what is intent from the perpetrator's side, and also in cases where people are talked into saying yes after saying no – under which circumstances is that legally consent and in which situations did she not have a chance to uphold her 'no'. How do you have to make it clear that you didn't want to take part?”