In the case of Julian Assange's alleged sexual misconduct, much emphasis has been put on the differing trans-cultural definitions of 'rape' between the UK and Sweden; with attempts at pointing out that 'rape' is defined more broadly in Sweden- implying that it is a country where minor offences, not widely considered a crime anywhere else, constitute rape.
Popular belief has, in recent years, regarded Sweden as a place where it's both easier to be convicted of rape and to receive harsher sentencing for sex crimes. Assange's first defence team, led by Mark Stephens, made an unwise attempt to project this notion as part of the defence, and the myth was picked up and perpetuated by international media.
But if we take a look at the facts, we see that this is not the case in reality. With the latest statistics showing that the length of Swedish prison sentences for sex crimes is considerably shorter than the UK, the issue isn't really as clear-cut as it first appears - and particularly when it comes to the concept of consent.
UK law offers a simple definition of the term consent; according to the 2003 Sexual Offences Act, a person consents to a sexual encounter "if he agrees by choice, and has the freedom and capacity to make that choice". Consent is impossible to ascertain when victims are unconscious through sleep or intoxication, and it is a crucial part of any rape case tried under the UK legal system.
In my native Sweden, however, 'consent' is not a part of the rape law at all - and, with the concept absent from even the latest Swedish definition of rape - adopted in 2005 - as including sexual intercourse as well as sexual acts 'comparable to intercourse', it's clear that some clarification is needed on this point.
Much of the Swedish rape law debate today concerns cases where the victim was either intoxicated or asleep. After the Assange case, a campaign called 'Prata Om Det' (Talk About It) was initiated to try to target this 'grey area'- an attempt at implementing a form of 'grass root' consent -based mindset.
In UK law, the position on this was established in the crucial Benjamin Bree case in 2007. In this case, where both parties had been drinking heavily, British rape expert Sir Igor Judge commented that the 2003 Act provided a clear definition of consent; "if, through drink, the complainant has temporarily lost her capacity to choose whether to have intercourse," he stated, "...she is not consenting".
With 'consent' absent in Swedish law, rape is instead judged by the amount of violence used. While the UK removed the prerequisite of violence in rape cases long ago, Sweden has yet to do so - law still dictates that a woman has to resist, and be able to show proof of resistance, for there to be a chance of conviction. What happens, then, in cases of Swedish group rapes where the victim gives up after the first assault? Only the first assaulter is convicted - and the others walk free.
This has, clearly, attributed to the rate of conviction in Sweden; only around 10% of reported rape cases end in convictions - one of Europe's lowest rates. While only 6% of reported rapes in the UK ended in a conviction in 2010, almost 60% of defendants in the UK are convicted once the case reaches court.
Swedish legal experts blame the low conviction rate on the difficulty of establishing evidence to ascertain the question of guilt. There are seldom any witnesses, so in the end it is a question of the purpose and intent of the defendant. In case of doubt, in Sweden as in the UK, you would always rather acquit than convict.
In the UK, the 2010 criminal justice statistics from the Ministry of Justice showed that rape sentences are now more than eight years on average; in Sweden, this figure is generally as low as 26-27 months. While the highest sentence in Sweden is 10 years (life imprisonment in the UK) - this punishment is only reserved for an extremely serious assault. The mildest punishment for a rape conviction is 24 months, and, if the victim knows her assaulter or has had a relationship with him, the sentence will be considerably shorter.
Once convicted, most Swedish rapists who behave well in prison will only sit two thirds of the time - meaning a release after only 16 months is commonplace. These short sentences are not a general reflection on the Swedish legal system, though; a serious narcotic offence, for example, might well yield up to 10 years in prison. In fact, many Swedish women wonder why rape sentences aren't longer; surely, the severity of the crime should be reflected in the law?
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