We need to talk about Sweden’s problem with rape and consent

Content/comments warning: This post is about the way Sweden’s justice system deals with rape and sexual assault cases. It will contain graphic descriptions of sexual violence and rape apologism. It is not about Sweden’s reported rape rate. Racist or MRAist comments will be deleted.

15^th May 2013

Swedish court clears ‘bottle sex’ men of rape

Three 19-year-old men were cleared of the rape of an underage girl. They had pinned her down on a bed, pried her legs open and inserted a wine bottle into her vagina, causing bleeding. The court accepted the truthfulness of her account, but rejected the charge of rape. It said she may have tried to keep her legs together out of “modesty”. The verdict stated, “People involved in sexual activities do things naturally to each other’s body in a spontaneous way, without asking for consent”.

19^th September 2013

‘No’ debate erupts after gang rape-acquittal

Six teenagers were cleared by a Swedish appeals court of gang-raping a 15-year-old girl. Although she had said no, as one of the judges told the media afterwards, “that doesn’t automatically mean it’s rape”. The absence of actual violence (apart from the rape) meant she had to show she was in an “incapacitated state”, and fear of being gang-raped by six people was deemed insufficient to meet that threshold.

4^th November 2013

Activists protest foster home teen rape acquittal

A 17-year-old girl in foster care in central Sweden reported the foster father for rape. His sperm was found in her vagina and on the spot in her bedroom where she’d said the rape took place. His explanation that he had been “erection training” in the bathroom and left a sperm-covered piece of paper there, that just happened to find his way into the girl’s vagina, was deemed feasible by the court. He was acquitted.

14^th January 2014

Swedish judge defends dominant-sex rape acquittal

A man was acquitted of raping a woman who had screamed to the point of losing her voice as he attacked her. The court said it could not be rape because “the thought had not occurred to him, that she did not want to have sex with him”.

27^th January 2014

Man cleared of rape: was ‘unaware’ she was drunk

A man was acquitted of raping a woman in western Sweden. The court accepted that the woman was drunk – in fact, it said she had been so drunk that she “fell to the ground and lay there awhile”. But he claimed he didn’t realise she was drunk, and the court ruled there was no proof that he did.

31^st March 2014

District Court: All participated in a game in the shed

A 16-year-old was acquitted by a court in Eastern Sweden after forcing an underage girl to perform oral sex on another boy. The Court accepted that the girl felt forced, but said there was no proof that the accused intended force. Even though the reason she felt forced was him shooting her with a BB gun.

***

There’s a common thread running through the majority of these cases: a definition of rape (or sexual assault) in which the defining factor is not the victim’s consent, but the perpetrator’s perception of that consent. And unlike in Irish or British law, it seems, once that perception is asserted, its reasonableness is irrelevant. The accused need only claim to not have known the victim wasn’t consenting – no matter how patently absurd that claim is. The prosecution will need to prove that the accused not only heard “no”, but recognised it as “no”; not only that the victim was passed out on the floor from drinking, but that the accused recognised them as drunk. The fact that anyone with a brain in their head would have recognised these things? Not enough.

Through its laws on rape and prostitution, Sweden has produced two seemingly contradictory policies: that paying a woman who agrees to take your money for sex is the worst thing ever, but ignoring a woman’s rejection of your sexual advances is ok as long as you say you didn’t mean it. For a country so determined to control some women’s right to say “yes”, why is there so little concern for the right to say “no”? The only conclusion I can draw from this is that the Swedish state really doesn’t trust women at all to dictate the terms of their own consent.

(I should point out that one change has been made to the laws discussed above: namely, a rape victim who submits without force no longer has to show that they were in an “incapacitated state”. They can now show that they were in a “particularly vulnerable situation”. But the woman in the 27^th January case was able to demonstrate this, and her rapist still walked free. Because he claimed he didn’t see it, and that’s still what matters in Sweden.)

Of course, there are rapists who are convicted in Sweden, maybe some of whom tried and failed to get away with the “I didn’t know no meant no” defence. That doesn’t make the existence of the defence any more acceptable. There are also some rapists acquitted in Ireland and Britain despite exceptionally dodgy consent defences, and since all our rape trials are heard by juries, who don’t give reasons, we wouldn’t know if they were de facto applying the Swedish standard. But it’s still better that they’re instructed not to.

If you’re reading this and it surprises you, ask yourself why you haven’t heard of these cases before. Why are they only ever reported in Swedish media and never picked up abroad? Why is that mainstream feminists, when they do hear about these cases (usually because people like me have tweeted these links at them), still refuse to acknowledge Sweden’s rape problem the way they decry, say, India’s or the USA’s?

To me the answer seems obvious: because mainstream feminism is incredibly invested in the narrative of Sweden-as-feminist-utopia. This isn’t just because of its horrible sex work laws; Swedish-style governance feminism in general is what mainstream feminism aspires to, where its hopes are pinned. To admit that it’s actually a bit shit for women in some ways, and particularly in a way like this which goes to the heart of women’s rights, is to admit that their emperor has no clothes. So better to ignore it and hope it goes unnoticed.

As someone who cares more about the actual lives of women than about any state feminism project, this post is my small contribution to stopping it going unnoticed.