Carla Gray: Should Scots look abroad to boost rape convictions?

Published on Thursday 9 December 2010 13:05

As Julian Assange faces trial, Carla Gray asks what we can learn from the Swedish legal system

You would be forgiven for missing the fact amid all the furore sparked by his website, but there is something very interesting about the criminal investigation against whistleblower extraordinaire Julian Assange.

The Wikileaks founder is facing trial in Sweden on two charges of rape in circumstances which have led commentators in other countries to talk about a conspiracy against him.

Little is known about the events which have led to him facing extradition to Scandinavia from the UK other than that he had sex in the space of four days with two different women.

Both women appear to concede that up until a certain point they were willing partners, but something changed, turning what might have been viewed as casual sexual encounters into alleged rape.

There is no suggestion Assange used any physical force, but some form of emotional coercion may, it seems, have been involved. His apparent insistence on not using a condom may be central to one of the cases against him.

It has led many to conclude that Swedish courts must be working effectively on behalf of the US government in their desire for vengeance on the man who has washed their dirty linen in public.

In Sweden, though, the story is completely different. There is a widespread acceptance that Assange's case is nothing out of the ordinary.

Indeed, since Sweden adopted some of the toughest sexual offence laws in the world in 2005, this kind of case has become increasingly familiar in the country. So strict are the Swedish laws that lawyers are said to joke that men need written permission before engaging in sex with a new partner.

The law there now has three distinct categories of rape, ranging from brutal assaults to lesser charges which involve non-physical coercion, such as a financial threat like a boss making clear that an employee could lose their job if they did not meet a demand for sex.

As women's lawyer Claes Borgstrom explains: "It is not necessary to have a lot of violence. In practice, if you force someone to have sex with you against their consent you don't have to use much violence at all."

The stance is credited with sending the number of rape complaints in Sweden soaring by 85 per cent, trebling the number of convictions.

The potential benefits to Scotland, where there are long-standing concerns about the low level of rape convictions - just 25 out of 821 complaints in 2008-9 - and fears of under-reporting, are clear.

Scotland's sexual offence laws have only recently been updated, but could we nevertheless learn a lesson from Sweden? The Swedish laws may have created a climate in which women are more confident in coming forward to make a criminal complaint after being sexually assaulted, but James Chalmers, Edinburgh University Law School's director of postgraduate studies, is sceptical about their ability to make any difference to the terribly low proportion of rape complaints which result in convictions here.

"Usually, as the reporting rates go up, conviction rates remain static, so I don't think the Swedish laws would have much of an impact," he says.

What would have a bigger impact, he argues, is if victims were allowed independent legal representation to work alongside the state prosecutor during rape cases, as is allowed in Sweden and other parts of Europe. The idea is supported by Rape Crisis Scotland, which argues that during trials many victims feel like they're re-living their ordeal as their sexual history and medical records are discussed in public.

Having a lawyer whose sole responsibility is protecting their personal interests can save the victim having to answer such intrusive questions.

Some, however, are even concerned that introducing Swedish-style laws in Scotland could be counterproductive.

John Scott, criminal vice-president of the Society of Solicitor Advocates, fears it could discourage jurors from convicting offenders.

"Rape is one of the most powerful words in the English language therefore jurors might be more hesitant to use it," he says. "They may have been more willing to convict someone of a charge less severe than rape."

The Swedish system may not provide all the answers, but it seems there are at least some parts of it which are worth adopting in Scotland.

SENTENCING LAW IS CLEAR

SWEDISH law sets out three categories of rape, with a sliding scale of sentences depending on the severity of the offence:

&#149 A person can spend up to two years in jail if they are found guilty of unlawfully coercing someone into performing a sexual act. An example of this is to threaten someone with losing their job if they don't engage in sex.

&#149 Rape carries sentences of between two and six years, but the court can take into account aggravating factors which can increase the sentence to four years.

&#149 The most severe sentence, ten years, is normally used in particularly brutal, violent rape cases.