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No Requirement of Proof in Swedish Sex Trials
Court rulings sealed to hide lack of evidence. Another ugly thing about the Swedish judicial system.
Tomas Eriksson is a specialist in forensic psychiatry. He's studied the court evidence in great number of convicting incest verdicts. The following article was first published in Swedish Dagens Nyheter (DN.se) on 28 September 1994 and was reproduced by the Nordic Committee on Human Rights (nkmr.org).
This was the first of a number of articles published by the same author between October 1994 and October 1995.
The situation hasn't improved in Sweden since 1994 - it's only become worse.
Geoffrey Robertson QC, Mark Stephens, Jennifer Robinson and others have tried to impress the British courts with the futility of seeking justice in Sweden. Justice must not only work - it must also be seen to work. But not in Sweden where closed doors and complete lack of public insight are more and more becoming the norm.
Controversial solicitor Claes Borgström keeps telling everyone that 'victims' can't determine if they've been violated because they're not jurists. But most 'magistrates' sitting in the Swedish courts aren't jurists either - they're political appointees with no background in law.
Surveys conducted by 'HAX' (Henrik Alexandersson) for Swedish TV8 with Swedish court magistrates show these 'amateurs' answer key legal questions incorrectly 63% of the time. A full 50% of them think it's perfectly OK to slant a verdict according to one's party political platform. 33% admit they've already done so. A surprising number of them believe they can sidestep the 'presumption of innocence' as long as they then mete out a lighter sentence as compensation.
They also believe that when they finally run into a case with cold hard evidence, they can be harsher than the norm - 'because this time we have real proof'.
Welcome to Sweden. Howard Riddle says you can get a fair trial there. The facts say otherwise.
No Requirement of Proof in Swedish Sex Trials
A 65 year old man is sentenced to 4 years in prison and damages of SEK 500,000 for raping and abusing his 12 year old stepdaughter. In the sealed verdict is found a gynecological examination which shows only that the girl several years later was no longer a virgin. There are other circumstances cited of low grade value as evidence. At the same time the fact the girl was a notorious pathological liar is studiously omitted.
Other facts which further reduce her credibility are also conspicuous in their absence.
Sexual assault of children is an especially serious crime but in practice it's hard to prove. There's usually no forensic evidence and the courts are forced to rely on testimony that's difficult to interpret and often obtained several years after the fact. They also rely on 'expert' testimony from psychologists with very dubious credentials. The ability of the courts to judge correctly in these cases has also been roundly questioned.
Despite a number of cases where the alleged victims single out long lines of men as sex offenders on obviously fallacious grounds, the Swedish courts still seem to adhere to the myth that no 'victim' would ever lie about something like this. There is reason to suspect that the courts' disgust with the crimes, in combination with strong public opinion that the 'culprits' should be ransacked and convicted, has led to the evidentiary requirements being lowered to a level that would be unthinkable in any other type of criminal proceeding.
According to current practice, it seems to be sufficient for a conviction in Sweden if someone can convincingly accuse someone else of a sex crime. This has led to more and more people sitting in Swedish prisons for crimes they insist they did not commit, on convictions based for the most part on the uncorroborated testimony of a claimant.
The most fundamental principle of rule of law is presumption of innocence: no one shall be convicted unless proven guilty beyond a reasonable doubt. The criminal code also stipulates that courts must account for the findings of facts that become the basis of their guilty verdicts. Sometimes it's claimed that people can't be expected to comprehend a verdict if they haven't been at the trial - it's claimed the behaviour of those involved is a factor in the verdict. This is twisted methodology - it's astonishingly easy to fool people by one's behaviour. Crying, gestures, involvement in a performance are no proof of authenticity. For fraudsters the ability to fool others is a key to success.
That the courts have all the more chosen to conduct proceedings behind closed doors and to seal their verdicts in these cases prevents the magistrates from being targeted by the insight and public control otherwise considered vital in a society based on civil rights.
One can't get away from the thought that the very procedure of sealing verdicts is founded, perhaps only subconsciously, on a desire on the part of the courts to not let the citizenry see the weak or nonexistent evidence for a conviction rather than consideration for the victim - which was the original reason to offer this possibility.
In recent years I've had all the more opportunity as a consulting physician to the courts to read verdicts in this type of case where the courts simply cannot convince me of the defendant's guilt. This is very unsettling, not in the least because the very nature of these crimes demands that no one innocent shall be found guilty.
The matter of evidentiary requirements in sex crimes is of vital importance for the rule of law and should now be the subject of a public review.
And in this context I'd like to call everyone's attention to a case where both the district court and the appellate court rendered guilty verdicts that are not only highly questionable but even incomprehensible as regards their evaluation of the evidence at hand.
A 65 year old man has been sitting in prison a year already, convicted of assault and rape. He was arrested by the police the same day he retired from a life long career as a teacher. He has no prior record but was sentenced to four years in prison and damages to the supposed victim around SEK 500,000. He's not only imprisoned and financially ruined; he's also been disgraced.
The four crimes he was convicted of all have to do with his stepdaughter and were to have taken place in the summers of 1988-1990 when the family were in the country. He's to have unprovoked kicked the girl in the stomach on a walk in the forest when she was 11 years old - a kick so powerful that she was bedridden for several days with abdominal pains and a fever.
He was to have raped her when she was 12 years old. And the following summer to have raped her again, this time adding a bit of kicking in the back.
There are no witnesses to these assaults. No physical or medical evidence whatsoever. And the girl herself didn't mention anything of this until 1993, three years after the alleged incidents.
The man was convicted in both the district court and in the appellate court. The verdicts are in both cases sealed. The supreme court refused to review the case.
So what's the proof the courts referred to in their sealed verdicts? Proof so strong that they can be the basis of a conviction with such a prison sentence and awarded damages?
The first proof, the one that seems to have had a decisive influence on the verdict, is a medical statement by a forensic physician who conducted a gynecological examination where it was established that the girl's hymen was forcibly broken, that there was scar tissue around it, and that this had occurred at least six months earlier.
Despite the fact that most medical experts would point out that this is the situation for most women who've had a sexual debut, the forensic physician writes in his statement that his discovery is 'in accordance with the careless insertion of the erect penis of a grown man' as well as 'the overall impression is that the claimant has been the victim of a sexual assault'.
The girl has to have been a virgin and sexually inexperienced at the time of the examination for said examination to have any relevance. The examination took place when she was 16 years old. The contention is skewed by details in the investigation. It is difficult to believe other than that the conclusions in the physician's statement have been coloured by an implicit belief in the girl's story.
The second proof is the girl's story itself. The appellate court judged her to be 'believable' because of how she behaved in a number of interrogations - that she showed 'great grief' when she talked about how she'd been assaulted, that she 'reacted strongly, sometimes with intense shivers', and that 'we've found no circumstance to point to a motive for her fabricating the story': all this means that the claimant herself becomes the evidence of the authenticity of her story.
This is a 'quack' psychological rationale totally without scientific foundation. It's just as likely the girl would exhibit grief and shivers if she were fabricating accusations of terrible assaults against her grandfather.
The third proof is a number of circumstances which according to the courts gave 'some support' for the girl's accusations. So the fact that the girl at some point 'went to bed with abdominal pains' lends 'some support' to the claim the accused kicked her in the stomach. The fact that the mother said that the girl returned from a walk with the accused with 'black on her face' lends 'some support' to the claim the girl had been raped; and the court found 'some support' for the suspicion that 'something happened at the beach' (where the girl claimed she was raped) in the fact she no longer wanted to paddle the rubber raft her grandfather had taught her to use. Several additional circumstances of the same caliber are cited in the verdict.
A long list of items that seriously shatter the girl's believability are slighted or not mentioned at all in the verdict. Nowhere is it mentioned that the girl had already had a long history of serious psychiatric and social problems. Nor that the girl has a long and documented history of being a pathological liar and that her development in this regard had been an increasing worry for her family. Neither that she was often found thieving and cheating people out of money and strong indications she was a considerable substance abuser.
Another thought-provoking situation is the fact that two years after the above alleged incidents - but still one year before she told anyone about them - she accused the father of a friend of sexual molestation which was supposed to have taken place in the presence of her friend and her friend's mother, for which she was awarded damages in the amount of SEK 15,000, money she used to holiday in the US.
The girl's believability is also shattered by the way she first presented her story: she was at the time a patient in a mental hospital. A nurse at that institution has given thorough testimony in a long police interrogation and says she was struck by the fact 'something must have happened' with the girl and thereafter began asking strongly leading questions of the girl, questions which gradually got the girl to fabricate her story.
This very same nurse was also present when the girl first spoke with the police and was also present at the girl's first formal interrogation. The police protocol admits that the girl herself said hardly a word through the entire interrogation - it was the nurse talking instead. Both the replies to the police and the accusations themselves were provided not by the girl but by her nurse from the mental hospital. And things didn't change when the case came to court: the girl was not asked to tell her own story before the court and wasn't cross-examined either. She wasn't even in the courtroom for the district court proceedings. Instead they played a video recording from the police interrogation where the court could see and hear the police speaking with the nurse, not the girl. Even in the appellate court she only attests to what others have already claimed on her behalf.
It's very unusual that rapists begin their career at the ripe age of 60. It's also very unusual that people commit unprovoked and brutal assaults on small children without showing any signs of personality aberrations. The suspect here is completely mentally healthy. He shows none of the signs normally seen with perpetrators of violence. These circumstances further undermine the magistrates.
Even if we were to actually believe the suspect is guilty - despite the facts cited above - it's still not enough to convict. There must be presumption of innocence and the suspect must be proven guilty beyond the shadow of a reasonable doubt. Whether that's the case here is now shown in the clear light of day. It's my hope that the facts I've provided in this article will lead to an independent review by Swedish publicists. The suspect's legal counsel will soon be submitting an appeal for review to the supreme court. The matter must be expedited swiftly.
I'm so sick of it all. Will it never end? At any rate I want to say the other girl's just as much to blame.
- Anna Ardin
Apparently Swedish laws are unique. If you have a penis you're half a rapist before you even get through customs.
- Scott Adams
If I am able to reveal what I know, everyone will realise this is all a charade. If I could tell the British courts, I suspect it would make extradition a moot point.
- Björn Hurtig
I can tell you that the Swedish prosecution still hasn't provided copies of those SMS texts that have been referred to. Those texts are some of the most powerful exculpatory evidence. In Australia prosecutors have a very grave duty to disclose such evidence to courts when seeking the grave exercise of a court's power against an individual. Yet in Sweden in this case, in the first hearings to obtain an arrest warrant, those texts were not submitted to the Swedish court, which is highly improper.
- James Catlin
The prosecutor could achieve this broadening of the law during Assange's trial so he can be convicted of a crime that didn't exist at the time he allegedly committed it. She would need to. There is no precedent for this. The Swedes are making it up as they go along.
- James Catlin
Julian Assange will surely learn that considering what WikiLeaks has published, he's got a few enemies in the Pentagon, the CIA, and the White House. Sweden began an investigation into rape which was later dismissed. Assange was even denied residence in Sweden. One can only speculate to what extent the security agencies of the US were involved. And considering the obvious interest of the US to silence WikiLeaks, is it likely Assange will have an accident of the 'Boston brakes' kind in the coming years? Or will he be snared with compromising information of the 'honey trap' kind?
- 'Drozd' at Flashback 23 October 2010
The truth will out, the truth wins out. Let no journalist ever again speculate into what the protocols say. Six months of digging and the people at Flashback have the actual documents. The sleaze printed by rags such as the Daily Mail, Sweden's Aftonbladet and Expressen, and perhaps above all the toxic Nick Davies of the Guardian, can stand no more. Yet more: these documents are an indictment of the 'news organisations' who've printed deliberate inaccuracies all along or even worse: refused to print anything at all. Nick Davies' account of the protocols was maliciously skewed; both Aftonbladet and Expressen had copies early on and printed nothing. Bloggers had copies but arrogantly kept the information to their Smeagol selves.
- The Assange Police Protocol: Translator's Note
NKMR: Inga beviskrav i sexmål