Swedish Court Decides Sexual Assault is Not a Crime

Trigger Warning for descriptions of sexual assault, apologism, and victim-blaming

At a New Year’s party in Sweden, a 17-year-old girl laid down to sleep on a sofa. The 49-year-old father of the boy hosting the party proceeded to lift up her skirt while she was unconscious and photograph her genitals. He then, in some unspecified manner, spread the photo to other people.

The victim pressed charges, once she learned of what had been done to her. Then, the court dismissed the charges — not because they found that there was insufficient evidence, or because the victim changed her mind about pursuing the case, but because they said that lifting an unconscious person’s skirt without her consent and photographing her genitals, also without her consent, is not against the law.

A court in Halmstad on the southwest coast of Sweden has dismissed charges against a man who reportedly took a photo of a 17-year-old girl’s genitals while she was sleeping. The court said that the incident was was not a punishable offense.

Citing several other cases, the Halmstad district court said that the man had not committed a crime. There is no general prohibition against photographing people without their consent. The same applies to people who are asleep.

The fact that other people have seen the photograph, as claimed by the prosecutor in this case, doesn’t make the incident a punishable offense either, according to the court.

What we’re looking at here is a legal system which has absolutely no respect for women’s bodily autonomy — a legal system that says “so long as she’s there, you can do whatever you want with her.”

This is not a purely theoretical interpretation of the decision. What the court has opted to do here is say that a certain type of sexual assault is acceptable — and so you better believe that the type of guy who gets a kick out of sexual assault is thanking his lucky stars for this green light and breaking out his camera as we speak. Sexual predators have a tendency to enact their violence in ways they think they are most likely to get away with, and take cues from social attitudes and the judicial system in terms of which victims are seen to be the least sympathetic, most marginalized, and most unrapeable — so thinking that no sexual predator will read of this decision and start acting accordingly is naive at best.

But what we have here is not only the assertion that no parts of one’s body are ever private and that consent is not needed to photograph them, but also that one’s body does not have the right to be free from physical assault. The photographs themselves were certainly a sexual assault. But so was the act of lifting up the victim’s skirt without any form of permission — a type of assault which I would like to believe is illegal in Sweden, and so presumably the court simply decided didn’t count. Again, she was there.

This isn’t a view held only by a misogynistic court, the idea that hey, there was no physical injury, so how could non-consensual touching possibly be a violation or assault, it’s one that is unsurprisingly shared by many members of the general public. In the comments to the original article (not recommended, trigger warnings apply), while many thankfully note the appalling nature of the decision, others blame the victim for allegedly failing to wear underwear. Of course, they have no evidence that she wasn’t wearing underwear, only an absence of its mention in the description of the assault. But that doesn’t stop them, any more than does the fact that what one does or does not wear under one’s own clothing is nobody else’s business. Only sluts don’t wear underwear under a skirt. And, as we know, sluts always totally want it. Especially when their all existing in public and such, and dressing as they want, as though they deserve some sort of bodily autonomy.

My first inclination upon reading this story was to think that the court made a grave and reprehensible error through a very narrow reading of the law, and that legislators needed to immediately close what was quite possibly an unintentional loophole. Sadly, I should have known better than to have given anyone the benefit of the doubt here. Because the last line of the article makes note of a previous case, on which this decision was based. And it is abhorrent:

The court cited a Swedish Supreme Court (Högsta domstolen) case that cleared a man who had been brought to trial for filming sexual intercourse without the consent of the woman involved.

Presumably, this other case didn’t happen within the past couple weeks, and yet here we are, with the problem persisting. The Swedish Supreme Court ruled that the autonomy and rights of women become irrelevant once any kind of sexual consent has been given. She agreed to intercourse, and therefore the man she was with could do whatever the hell else he liked with her.

The same rule applied to this decision, though what the victim did consent to changed. In this case, she consented to falling asleep near someone who had the inclination to sexually assault her. Or, perhaps, she consented to not wearing underwear under her own damn skirt. Or, at the very least, she consented to existing as a woman outside of her own home, and didn’t remain absolutely vigilant during every single second that she did so. And that, apparently, is more than enough consent for absolutely nothing else to matter.

0 thoughts on “Swedish Court Decides Sexual Assault is Not a Crime

  1. Melissa

    Ah, goodbye, pretty little picture in my head of Sweden as one of the countries with the most progressive/healthy attitudes about sex in the world…

    Reply
  2. crizon

    As long as this law treats men and women the same (-> a woman would also not get punished for photographing a nude female) concluding sexism and misogyny is ridiculous and dishonest.

    There’s a difference between something unjust happening to a woman and something unjust happening *because* she was a woman and the crucial part, showing that the second one was true for the decision of the court, wasn’t even discussed.

    Reply
    1. Cara Post author

      What is missing from your utterly brilliant conclusion, Crizon — wow, I’d never thought of it like that before! — is that women are by far the majority of victims of sexual assault, and men are by far the majority of perpetrators. Seeing as how that’s the direction in which almost all of the impact will go, and seeing as how, actually, we are talking the right’s of women’s bodies in almost entirety, and seeing as how the court decided that it’s women’s bodies that don’t have rights, yes, the ruling is based in misogyny. By the way, I’d be just as appalled at the ruling, and I would still be calling it misogyny, if as in your example the perpetrator had been another woman. But thanks for playing.

      Reply
  3. Bob

    Agreed. The author is way off base. The simple fact is (cue assumptions on Sweden being similar to America) the court determined this was not an act prohibited by law. The court cannot create non-existent law. If the legislature has not addressed the issue that is it. There is all sorts of conduct that is not addressed by the law. Sometimes it gets pointed out by cases such and this and the legislature moves to address it. At other times they have other things to do than force through an amendment to the criminal code.

    The problem with creating a law prohibiting this type of conduct is that it would have to be standards, rather than rule based. That of course would lead to myriad problems of interpretation and application and open the door to even greater headaches. There is no easy drafting solution.

    Reply
    1. Cara Post author

      Thank you, Bob, for reading the part of the post where I criticized the legislature for seemingly have not acted since it was ruled that a person could be filmed engaging in a sexual act without their consent. No one said the court could create a law. It’s my understanding that courts can, however, generally interpret law, though if in Sweden they cannot, the courts are very different from American ones, indeed! [For the record, I don’t claim to know anything about the intricacies of Swedish courts. I don’t. If, however, there was something not in the article I read that I should know, it’d be useful to say what that is.]

      Also: are you telling me that in Sweden, it is not illegal to undress a person without their consent? Because if undressing a person without their consent is legal in Sweden, that would certainly be good to know, and I will thank you for the information! I mean, that’d be a whole other post, right there. If, however, you are just overlooking the fact that the perpetrator in question did assault the victim by lifting up her skirt, I am unimpressed.

      I will however refrain from asking you, Bob, who presumably identifies as male, how exactly it is that litigious people causing headaches is worse than sexual assault being legal. Because I don’t want to know.

      Reply
  4. Kaia

    I’m Swedish. I don’t know the laws all that well, but I DO remember that there about ten years ago was a case where a 14-year-old was raped by SEVEN GUYS, or possibly even more than that, none which could be charged with rape because she had been too drunk to say no. And, um, at the time, the law stated that if the woman/girl in question didn’t outright SAY no… it couldn’t be rape, just sexual assault. Which shaves a good decade off the max sentence.

    I think they changed that particular law after this case, because people were outraged, but yes, I’m not surprised at all about this. Our laws tend to be very direct; if it doesn’t say in the law that something is forbidden, it’s not a crime.

    Another example: transgendered people have to get divorced before transitioning because if they were formerly in a straight marriage they can’t get their sex reassignment surgery without being single – as two people of the same sex can’t be married.

    Actually, the law about same sex marriage changed this year, maybe that’s not true anymore. But yeah. Down-to-the-last-letter laws. All the way.

    Sadly.

    Reply
  5. anne

    As a Swede, I am continuously amazed by how the rest of the world views us as a country of equality utopia. Gender roles are far stronger here than in the UK or North America.

    Reply
  6. Mortality

    As a Swedish law student I can tell you some things about our legal system.

    In criminal cases if something isn’t outright illegal then it’s legal. There is very little room for interpretation. A while ago someone was raped with a bottle, but the law said that sexual intercourse against someones will was rape. So they couldn’t send that rapist to jail. They changed the law and now apart from sexual intercourse an act that is “comparable” is illegal too. It’s up to the courts to determine what is “comparable”.

    As my internet is messing with me right now I can’t comment on the actual case since I haven’t read it, but it is not illegal to photograph a person without their consent. Spreading nude pictures where you can identify someone on the other hand can be prosecuted as slander and/or some kind of child porn.

    Just taking pictures is not seen as an assault in and of itself.

    In general we have pretty low sentences for criminal charges. You won’t see someone in Sweden getting a life sentence plus sixty years. You can get ten years for homicide (minimum sentence for homicide is ten years)

    Reply
  7. scwizard

    Well when you do manage to get your hands on the case, Cara is going to be very interested to know whether or not there is a law against undressing women against their will.

    Reply
  8. Acey

    It’s not that this wasn’t sexual assault. It’s that the Swedish penal code does not define this as sexual assault. See Ch 6 of the Swedish penal code: http://www.sweden.gov.se/content/1/c6/02/77/77/cb79a8a3.pdf

    I think it might be sexual exploitation under Swedish law. It’s possible they went for the sexual assault charge first, since that’s the most serious, so that they could set a precedent and test the law. They can now downshift to other offences. It looks like you can still get 6 years for this. It may also fall under child porn or something – I didn’t check the law on that.

    So what this shows is that Sweden needs to expand its definition of the law.

    I’m not a lawyer.

    Reply

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