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Rape Debate Doesn’t Help Victims

Translated from Dagens Juridik, first published 2009-08-21.

A few times a year there’s a trial or a verdict that has all the ingredients necessary to start media frenzy. The conditions seem to be that the right perp rapes the right victim at the right place, and that the news media aren’t already sick and tired of more news about more rapes. The daily media have the power to create debate about things that can have real consequences for legal praxis. But unfortunately the pattern is all too often the following.

Svenska Dagbladet, regarded by many jurists as ‘their paper’, prints an article about the incident. The comments are full of innuendoes about ‘incompetent judges’. The paper (Svenska Dagbladet – SvD) links to bloggers who wonder how one proceeds when it’s one person’s word against another’s, but who ultimately conclude that ‘rape is rape’. There’s not much more that happens at this point – it’s hard for the public to know if the case is about a real rape or just one of the usual kind.

Professor emerita Madeleine Leijonhufvud reads the article and is very upset. With perhaps the help of professor Christian Diesen she pens an op-ed demanding a little of this, a little of that. The editors of SvD know from experience that the debate that ensues will generate an entire week of op-eds signed by members of Sweden’s judicial elite. The frenzy has begun.

We saw this two years ago in conjunction with the so-called ‘Stureplan profiles‘. Leijonhufvud and Diesen proposed back then that there be a ‘consent’ rule put in the law books. Everyone was provoked. One was prosecutor Rolf Hillegren who together with three coauthors dismissed the opinions of the professors as totally alien for all active jurists.

The ‘Stureplan profiles’ were hung out in the blogosphere before a verdict was returned. The editor-in-chief for ‘City‘, Michael Nestius, wrote that of course he didn’t know how the law worked, but the defendants must be convicted and the law must be changed if they couldn’t otherwise be found guilty. At the same time, the Publicist Club had a panel discussion on the subject. Television personality Hasse Aro condemned Swedish populism. Attorney Per E Samuelsson tried to offer a nuanced explanation, namely that there’s a difference between what’s transpired and what can be proven with evidence, and why rape victims have to answer uncomfortable questions in court.

Acquitted in the district court, the defendants were tried again in the appeal court and sentenced to four years prison. They were denied appeal to the supreme court. SvD’s Paulina Neuding laments the media frenzy. Time moves on, the discussion fizzles out. For 2008 and half of 2009, the media are too busy with murder trials and file-sharing.

And then it happens. On 14 August, SvD declares that the ‘new praxis’ of the supreme court as of 3 July means that ‘men previously convicted of rape will now be acquitted’. Justice Johan Munck denies, backed by a president of an appeal court and a PhD student in procedural law, that judges would have greater power in terms of setting precedents. Hadn’t it been for the comment by district prosecutor Rolf Hillegren at the end of the article, it might have stopped there. The journalist reproduces the fantastically provocative comment word for word, and I quote:

When one says ‘rape’, one thinks mostly of really gruesome rapes. But if you take a man and a woman who know each other and the woman says she’s not in the mood today, but the man wants to go ahead anyway. Sure it’s not fair, but it’s probably not worth two years in prison. It’s more on the level of a traffic violation.

The people who comment are angry. The bloggers are even more angry. But angriest of all is former Pirate Bay spokesperson Peter Sunde who, equipped with new skills in criminal law thanks to being sentenced to prison by a district court, files a complaint with the Ombudsman for Justice against Rolf Hillegren.

The frenzy reaches its height when SvD, three days after the first article, publishes the verdict of Madeleine Leijonhufvud: Rolf Hillegren has to go. Leijonhufvud is able to get some people to listen to her demand. No one’s going to sympathise with a middle-aged male prosecutor who trivialises rape in the national media.

When it comes to Hillegren’s position as prosecutor, it’s another matter. There are no rules of ethics for prosecutors corresponding to the rules lawyers have to follow. It’s very difficult to sack or replace a prosecutor. Ask Per E Samuelsson: he’s tried. Hillegren’s comment was inappropriate, but if the prosecutor in question hasn’t even been accused of professional misconduct, it’s pointless to demand his resignation. Both Leijonhufvud and SvD are aware of this.

The term ‘professional misconduct’ isn’t even used until Borgström and Bodström publish their op-ed on Thursday, and they only mention it in all haste and in passing. The prosecution authority made a half-hearted attempt to appear decisive: SvD can report that Hillegren will no longer adjudicate sex cases. That agreement was reached long before the comment that started the frenzy.

Despite this, the matter of Hillegren’s position was high on the agenda this past week. Everybody had something to say. It seems such a waste that the cream of Sweden’s jurists and professional pundits should spend an entire week thinking about something that in no way can ever help a rape victim.

At the same time as the trial of the ‘Stureplan profiles’, there was another rape trial in the Stockholm district court. An immigrant woman and her children had for more than ten years been abused with pliers, planks, burning matches, and heated knives and scissors. The woman, who was forbidden to seek medical help as she’d then be treated by a male practician, was raped a couple of times per week. The mentally ill man’s former wife had, for some unknown reason, committed suicide. This woman considered the same escape route, but chose to go on living for the sake of her children.

It’s not self-evident that this type of case gets reported. In this case, the perp was sentenced to eight years prison. The crime had gone on for over ten years. There are things that are more important in a debate on rape than the private views of a professor. But this type of rape can’t create media frenzy. Wrong perp, wrong victim, wrong place, wrong time.

This year, Swedish law will process 250 cases of rape. This is an infinitesimal fraction of the total number of convictions for assault. And the hidden statistic is of course great. The debate subsides. But it will return. Somewhere a man is going to have sex even though the woman really doesn’t want to.