Women and Justice: Jurisdiction

M.N. was convicted for attempting to purchase sexual services from a woman, which is a criminal act under Chapter 6 Section 11 and Chapter 23 Section 1 of the Swedish Penal Code. The court considered whether the “attempt point” had been reached, which is a prerequisite for the attempt to be punishable. To constitute a criminal attempt, it is required that the offender begin the crime without reaching its completion. There must also be a risk that the act will lead to the completion of the crime. For purchases of sexual services the attempt point is reached when an offer of payment has been made. Here, the parties agreed to have sex in the woman’s apartment and agreed on the price. M.N. had access to money and they were on their way to the woman’s apartment when the police stopped them. Therefore, the Court ruled that M.N. had begun the crime and that the attempt point had been reached. The Court also found that the danger of completing the crime was imminent. Thus, M.N. was sentenced to 40 daily fines for his attempt to purchase sexual services.

R.Z. sexually assaulted his female partner, C.J., with his fingers. During this action, R.Z. threatened to hurt her. In their testimony, the parties both said that he had done so to check whether the plaintiff had been cheating. The question was thus whether the act could be considered non-sexual. However, under the Swedish Penal Code, one of the prerequisites for an act to be classified as rape (Chapter 6 Section 1 first paragraph) or the subsidiary, sexual compulsion (Chapter 6 Section 2), is that it must be sexual. The Supreme Court considered whether the defendant’s intention could affect whether the act was a sexual act under the Swedish Penal Code. The Supreme Court ruled that it was inherently sexual. The intention behind the act does not matter. Furthermore, without the victim’s consent, the act constitutes a serious violation of her sexual integrity. The Supreme Court further found that the sexual act can be compared to sexual intercourse, which is another prerequisite for the act to be considered rape. Hence, the Supreme Court ruled that R.Z.’s act should be classified as rape.

A woman, L.I., suffered extensive injuries from being dropped from her balcony by her husband, B.B. From text messages between the parties during the night of the event, it was clear that L.I. was upset about something B.B. had done and it was clear that L.I. did not want B.B. to return to the apartment. The Supreme Court stated that in criminal cases, the prosecutor has the burden of proof. For conviction, it must be proven beyond reasonable doubt that the defendant has committed the crime for which he is prosecuted, which is normally difficult in these types of cases. L.I.’s memory of that night was incomplete but she remembered that B.B. had carried her to the balcony. Neighbors’ testimonies, the text messages, technical and forensic evidence all supported L.I’s testimony about the event. The Court ruled that it was proven beyond reasonable doubt that B.B. was guilty of attempted murder, for which he was sentenced to 14 years in prison. This case has become a landmark decision in Sweden regarding the evaluation of evidence in so-called “balcony cases.”

A to-be midwife, E.G., was denied jobs for which she had applied at three different obstetrics and gynecology departments. When applying, E.G. said that she could not participate in performing abortions due to her religious beliefs. The court considered whether the region had discriminated against E.G. according to Article 14 of the European Convention on Human Rights (ECHR) and the Swedish Discrimination Act and whether the region had violated E.G’s rights under Article 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the ECHR. The Swedish Labor Court found that the region’s decision not to employ E.G. for the positions she applied to, which included tasks that she had declared that she would not perform, did not constitute direct or indirect discrimination. The Labor Court stated that the region’s criteria – that the applicant could perform all tasks falling within the position, including abortion – was motivated by a legitimate purpose, i.e. good healthcare for the women seeking abortion as defined in the democratically adopted law. The criteria was also found appropriate and necessary to reach the aim of good health care. The Labor Court further deemed that it was E.G’s “professional limitations” and not her opinions regarding abortion that had mattered in the region’s decision not to hire her. Therefore, the Labor Court ruled that region had not committed violations of neither Article 9, 10 or 14 of the ECHR, nor the Swedish Discrimination Act.

Five notifications regarding discrimination of students by a Foundation were made to the Equality Ombudsman after the broadcast of a TV program. In the program, the students of a school owned by the Foundation were separated by gender on the school bus. The Equality Ombudsman’s investigation noted that a gender-based separation was also made in the gymnastics classes. According to Chapter 2 Section 5 of the Swedish Discrimination Act, it is prohibited for an education provider or an employee of the provider to discriminate against any child or student that participates in the school’s operations. For gender-based separations not to constitute discrimination, either the activities of the groups must be equivalent, without any student finding it disfavoring to be separated by gender, or the separation must be limited to moments where the students’ gender is of such importance that they are not in a comparable situation. The Equality Ombudsman ruled that the separation of the students in the gymnastics classes constituted a risk of one or more students being discriminated against for gender and transgender identity or expression. However, the separation on the school bus was not found to constitute a risk of violation of the Discrimination Act.

The Swedish Supreme Court ruled that a man, E.K., who filmed a rape and broadcasted it live on Facebook committed the crime of aggravated defamation, as opposed to the separate crime of failing to report an ongoing rape. The defendant filmed and "live-streamed" two other men raping a woman (Secrecy D). The Uppsala District Court and the Court of Appeal in Stockholm convicted E.K. of failing to report the rape and of aggravated defamation, but not in aiding in the rape. The Swedish Supreme Court reasoned that because E.K. was initially prosecuted for involvement in the crime, he could not also be prosecuted for failure to report it, as fear of prosecution is a legal defense to a crime of failure to report. The Swedish Supreme Court further examined whether the Swedish Fundamental Law on Freedom of Expression was applicable to the broadcast on Facebook, but found that it was not. E.K. was sentenced to four months’ imprisonment.

A 16-year-old girl, R.A., a resident of Sweden, was taken to Iraq by her family, where she lived in a marriage-like relationship with a man for eight months before she was allowed to return to Sweden. According to Chapter 4 Section 4(c) of the Swedish Penal Code, a person is convicted for forced marriage for inducing another person into a marriage-like relationship, if it is concluded under rules that apply within a group and means that the parties are considered to be spouses and to have rights and obligations towards each other. In Iraq, R.A. took part in a wedding ceremony, during which, according to her relatives, she married the man in question. After the ceremony, she was brought to a room where she had intercourse with the man. After the wedding, R.A. and the man lived together in the same room. During R.A’s stay in Iraq, it was a part of her obligations to have a sexual relationship with the man and to, in the daytime, take care of him and the household. The Svea Court of Appeal ruled that R.A. had been a victim of forced marriage. The court sentenced the parents, S.B. and N.I. to compensate R.A. with SEK 120,000 for forced marriage and SEK 5,000 for unlawful threat.

The defendant was charged with multiple counts of assault and unlawful threats under the combined classification of aggravated violation of a woman’s integrity (Sw. grov kvinnofridskränkning). In the Court of Appeal, the defendant requested that the court allow evidence regarding the victim’s character. The prosecutor and the victim objected, arguing that the evidence was meant only to tarnish the woman’s reputation and had no legal relevance to the present case. As his proffer, the defendant claimed that the witnesses would testify that the woman was a pathological liar and that she committed fraud and extortion by threatening to report a relative for molestation if he did not pay her. The Court of Appeal excluded portions of the proffered evidence and the defendant appealed that decision. On review, the Supreme Court held that because the prosecution relied primarily on the victim’s testimony, her credibility was a key factor in the case. As such, it determined that the Court of Appeal denied the defendant a fair trial by excluding the proffered character evidence. The Supreme Court reversed the conviction and remanded the case.

The defendant had been released on probation after having been convicted of aggravated violation of a woman’s integrity (Sw. grov kvinnofridskränkning) against a woman with whom he had a relationship. While on probation, the defendant assaulted the woman in her residence by striking her in the face and throwing her to the ground. The defendant had also left a message on the woman’s voicemail, threatening to kill her. The Court of Appeal for Western Sweden found that the defendant was guilty of assault and unlawful threat. The question before the court then became whether the crimes should be reclassified as aggravated violation of a woman’s integrity. The court held that because the defendant had previously been convicted of aggravated violation of a woman’s integrity, and the assault had been committed six months after the defendant was released on probation, the assault and the unlawful threat were to be viewed as continued and repeated violations of the woman’s integrity, and thus reclassified as aggravated violation of a woman’s integrity.

The defendant suspected that his then-wife was unfaithful. In order to determine if his suspicion was correct, defendant forced his wife onto a bed, pulled her legs apart, and inserted two fingers into her vagina. During this ordeal, the defendant had also threatened her. Despite the defendant’s alleged purpose, the Supreme Court found that his actions were sexual in nature and that they constituted rape. Although sexual assault may be viewed as less severe if the victim wakes up and objects, that concept did not apply. Here, the defendant used actual and threatened violence in a manner that was humiliating to the victim and, as a result, the Supreme Court held that the crime was not to be classified as “less severe” (Sw. mindre grovt), but as a rape of the “normal” degree (Sw. av normalgraden).

The defendant was charge with sex crimes, including: (1) rape of woman A, (2) sexual coercion and rape of woman B, and (3) sexual coercion and attempted rape of woman C. It was alleged that the defendant assaulted all three women while he was highly intoxicated. The district court convicted the defendant on all charges, but the Court of Appeal reversed the convictions on the charges related to women B and C. Regarding woman A, however, the Court of Appeal affirmed defendant’s conviction because, at the time of the rape, woman A was in a helpless condition and asleep from intoxication. Although the defendant argued that he should not be held liable because he was intoxicated, the court rejected his defense. The Court of Appeal recognized that the law classifies rape as less severe if there is no penetration, or that the penetration was brief and interrupted after the victim wakes up and objects to having intercourse, no such mitigating circumstances were present. Consequently, the defendant was convicted of rape of the “normal” degree (Sw. av normalgraden).

During a four-month period, A.H. made several unlawful threats (Sw. olaga hot) toward his ex-wife. The question in the Court of Appeal was whether the unlawful threats constituted repeated violations of the ex-wife’s integrity and whether the threats were meant to seriously harm her self-esteem. The Court of Appeal acknowledged that the parties were going through a divorce, where both parties expressed hurtful words to one another. As such, the Court of Appeal held that the unlawful threats did not constitute a violation of a woman’s integrity (Sw. kvinnofridskränkning).

During the course of a three month-long relationship, M.H. assaulted A.I. four times. The question in the Court of Appeal was whether M.H. and A.I. lived together under circumstances that could be considered equal to a marriage and, if so, whether the repeated assaults should be classified a violation of a woman’s integrity (Sw. kvinnofridskränkning). The Court of Appeal held that they did not. Because the couple did not share a household, the crime could not be considered as violation of a woman’s integrity. The Court of Appeal then assessed whether the couple were “closely related persons” (Sw. närstående), which would allow the assaults to be classified as aggravated violation of the integrity (Sw. grov fridskränkning). However, the Court of Appeal held that the relationship was too short for M.H and A.I. to be viewed as closely related persons and refused to convict M.H. of aggravated violation of the integrity.

T.H. was accused of assault and unlawfully threatening (Sw. olaga hot) his girlfriend, L.K. The alleged assault consisted of dragging her by the hair and pressing a knife against her throat, while threatening to kill her. T.H. also allegedly threatened to bomb L.K.’s apartment, and he told her that he would kill her if she called the police. The Supreme Court held that although the elements were present to establish an assault and the making of an unlawful threat, the defendant was not necessarily guilty of both crimes. According to the court, if an act is considered closely connected, and also subordinate, to another act, the defendant may be convicted of only one of the acts. The Supreme Court held that the threat was the more serious crime and that the assault could possibly elevate the unlawful threat to an “aggravated” threat, but the Supreme Court declined to do so in this case. Instead, the court convicted T.H. only of making an unlawful threat. Two Supreme Court judges dissented, arguing that the threat should have been classified as aggravated.

A man who possessed 39 drawn pornographic images in manga style was acquitted from a charge of possession of child pornography on the grounds that holding this possession as illegal would unreasonably limit freedom of expression. Swedish child pornography laws outlaw actual photographic material as well as drawn images. The purpose of this law is to protect children from offensive materials, to avoid anyone using child pornography to snare children into sexual situations, and to protect their likeness being shared in pornographic materials. The court argued, however, that because a conviction would mean a restraint in the defendant’s freedom of expression, the court must present a serious reason for why pornographic manga-styled cartoon images actually have the potential to harm a child in any of these ways. Because the images were not made in any child’s likeness and because manga is an expression of Japanese culture, the court ruled that the restraint on the defendant’s freedom of expression would be too great if he were convicted and the images were held to constitute child pornography.

["A person who, otherwise than as provided in Section 1 first paragraph (Author's note: rape), induces another person by unlawful coercion to undertake or endure a sexual act, shall be sentenced for sexual coercion to imprisonment for at most two years. (…)" Chapter 6, Section 2 of the Swedish Penal Code.] A woman was repeatedly forced, without the use of physical violence, to have sexual intercourse with her husband. In one instance the man tried to pull off the woman's pants after she had said that she did not want to have sexual intercourse with him. He then threatened her by saying he would forcibly open up her legs if she continued to refuse and twisted the woman's ankle, causing her substantial pain, as he attempted to keep her on the bed. The woman managed to run away from the bedroom and hold on to the door handle, thus making her husband unable to reach her. Instead, the man masturbated in front of the woman and then calmed down. The District Court found that in order to achieve sexual intercourse with the woman, the husband had used violence and threats. The woman had suffered pain, an injury to one foot, and probably also some bruising to her legs. The District Court found that the violence and the threats used could not be considered graver than those comparable to the coercion requirements in Chapter 6, Section 2 of the Swedish Penal Code and sentenced the husband to imprisonment for attempted sexual coercion. The Court of Appeal for Western Sweden upheld the District Court's ruling.

"An employer may not discriminate against a person who, with respect to the employer, 1. is an employee, 2. is enquiring about or applying for work, 3. is applying for or carrying out a traineeship, or 4. is available to perform work or is performing work as temporary or borrowed labour. (…)" Chapter 2 Section 1 of the Swedish Discrimination Act.] A woman had applied for employment at the farm where she was doing an internship. During the internship the woman had had a miscarriage, which she told the farmer about. She was later denied employment. The farmer claimed that he denied her employment due to her insufficient capacity for work. However, the Swedish Labour Court (Sw: Arbetsdomstolen) found that the decision to deny the woman employment did not completely lack connection with a possible future pregnancy. Hence, Swedish Labour Court ruled that the denied employment constituted a violation of the Discrimination Act and granted the woman compensation for the damage suffered from the discrimination.

This act contains relevant provisions regarding marriage recognition. In 2004, major restrictions were adopted in relation to child marriages and forced marriages that have been entered into abroad to discourage circumvention of Swedish law in cases of strong Swedish affiliation. According to the act, a marriage that has been entered into under foreign law is not recognized in Sweden:

The above does not apply if both parties are over the age of 18 and there are special reasons to recognize the marriage.

The Abortion Act states that a woman may have an abortion up to 18 weeks of pregnancy. An abortion past 18 weeks may be performed if the National Board of Health and Welfare (“NBHF”) (Sw. Socialstyrelsen) approves it due to exceptional grounds. A decision by NBHF regarding an abortion cannot be appealed. NBHF also reviews any cases of denied abortions. Any medical practitioner that disregards the Abortion Act may be fined or imprisoned for a maximum of six months.

The Swedish Penal Code includes regulations that defines and prohibits various sexually and/or physically motivated crimes against people. The penalty for kidnapping with intent to injure a person, to force a person into service or to practice extortion is imprisonment for at least four years and at most eighteen years, or for life. When a crime is less serious, the highest imprisonment term is six years. The penalty for human trafficking is imprisonment for 2-10 years. When a crime is less serious, the highest imprisonment term is four years. If a crime is in violation of liberty and peace or a sexual offense and it was committed by a man against a woman with whom he had a close intimate relationship (marriage or cohabitation), then the man will be sentenced for gross violation of a woman’s integrity and imprisoned for at least nine months and at most six years, as opposed to being sentenced for each individual crime committed. This crime was introduced in the Swedish Penal Code in 1998 and the construction of it is unique because several individual criminal offences together can constitute a gross crime. Perpetrators of rape shall be imprisoned for at least two and at most six years. If the rape is considered less aggravated, the sentence drops to at most four years. In the event the rape is “gross”, the sentence is extended to at most 10 years. The penalty for sexual intercourse with a child under 15 years of age (or an act comparable to sexual intercourse) is at least two and at most six years. If the crime is “gross”, the penalty is extended to at least five years and at most ten years. The penalty for sexual coercion is at most two years of imprisonment. Notwithstanding, if the sexual coercion is “gross”, the sentence is extended from at least six months to at most six years. The penalty for intercourse with an offspring is imprisonment for at most two years and for intercourse with a sibling is at most one year. The penalties for crimes of exploitation of a child for sexual posing, purchase of a sexual ct from a child and sexual molestation are sentencing to a fine or imprisonment for at most two years. Except for gross exploitation of a child for sexual posing where the sentence is at least six months and at most six years imprisonment. The penalty for purchase of sexual service is a fine or imprisonment for at most one year. Purchase of sexual service has occurred when a person obtains a temporary sexual relation in return for payment. This also applies if the payment was promised or given by another person. Selling sexual services in Sweden is not criminalized. The penalty for someone who promotes or improperly financially exploits a person’s engagement in temporary sexual relations in return for payment (procuring) is at most four years. In the event the procuring is “gross”, the sentence is 2-10 years. As of 2018, the Penal Code defines rape as any sex without consent, either with words or clear actions. Before the amendment, crimes of rape required the intent to rape someone through violence or threats, or that the victim was in a particularly vulnerable position. Furthermore, the 2018 sex crime reform of the Swedish Penal Code introduced criminal liability for negligent rape (Chapter 6 Section 1a) and negligent sexual abuse (Chapter 6 Section 3). Gross negligence is required for liability under the new regulations, rather than intention, as required for regular rape and sexual abuse in Chapter 6 Section 1 and 2. The penalty for negligent rape or negligent sexual abuse is at most four years.

["A person who, by violence or threat involving or appearing to the threatened person as imminent danger, forces the latter to have sexual intercourse or to engage in a comparable sexual act, shall be sentenced for rape (…)" Chapter 6, Section 1 of the Swedish Penal Code.] The Supreme Court ruled on the distinction between a sexual act and sexual intercourse. Although the victim in this case was a child, the decision still gives some guidance with respect to crimes against adults. A man took an eight-year-old girl with him to a backyard, where he kept a firm hold of the girl and pulled her pants and panties down against her will. For a moment, the man pressed his penis in between the girl's buttocks, which inflicted certain pain to the girl. However, since the offense was brief and since the man had neither touched the girl's genitals nor anus, the act was not considered comparable with sexual intercourse. The man was convicted of sexual abuse of a child. (The distinction was important at the time but the legal definitions have since changed and even without sexual intercourse or penetration it would now be possible to convict someone for rape of a child.) [Decision on file with Avon Global Center]