Recently, there has been much coverage online of a recent case from Sweden in which a cisgender man was acquitted of the rape or attempted rape (since the act, apparently, was never completed) of a transgender woman. (See here, here and here.) Much of this coverage has implied that the acquittal of the defendant resulted from the judge’s bias against trans women. While that could well have been a factor here, I suspect that the situation is much more complicated than that.
When I’m not online, I work as a criminal defense attorney doing appeals for defendants who have been convicted but cannot afford an attorney. I have doing this work since 1997. I say this not to brag, but to lend some credence to what I’m going to say here.
Part of my job is to parse the language of the statutes under which my client was convicted to see if they do, in fact, apply to my client’s conduct. Because of the long sentences at stake, many of my cases involve sex offenses, like the case in Sweden. One thing I’ve learned through that work, is that legislators are often very bad at drafting clear and comprehensive statutes. Another thing I’ve noticed is that, unless the state or country has undertaken a comprehensive program of updating their statutes, the statutes are likely to reflect many outmoded ideas, such as the belief that women cannot be raped by their husbands, something that was only corrected here in Arizona in the last few years.
My point is that, regardless of the judge’s personal feelings, it could well be that the applicable statute in this case was written in such a way that a conviction was simply impossible. For example, the statute here may have defined rape as only the nonconsensual penetration of a vagina. Without reading the exact statute the attacker was charged under, as well as the indictment stating his alleged crime, it is impossible to know whether the failure of Sweden’s criminal justice system in this case was the fault of the judge, the prosecutor or the legislature, or some combination of the three.
I too decry the result in this case, but I think we do our fight for equality a disservice when we automatically attribute outcomes we disagree with to the prejudice of the people involved without acknowledging the broader systemic failures at work. For better or for worse, the world is not always as black and white as we make it out to be, and not everyone we disagree with is our enemy.
One final comment: I’ve seen many posts, on Twitter and elsewhere, claiming that the attacker was set free based on the court’s ruling. In fact, despite the acquittal on the rape charge, the attacker was convicted of assault and is facing 4 years in prison. Presumably, the sentence for rape would have been much longer.
UPDATE: I finally found the Swedish rape statute in English, which makes clear that, contrary to my example, the defendant in this not case was not acquitted because the applicable statute only applies to forced intercourse with a woman by a man. Instead, a closer reading of The Local article above indicates that the defendant’s acquittal of rape was based on the concept of mistaken intent.
Under U.S., and, it appears, Swedish, law, to commit an attempted crime, e.g., an attempted rape, the defendant must have the specific intent to engage in conduct, which, if completed, would constitute that crime. Consequently, if the defendant is mistaken about the factual circumstances of the situation, it may be factually impossible for the defendant to have committed the crime with which s/he was charged, even though the defendant did intended to commit a crime. An example may help.
Imagine a defendant who wants to buy marijuana, but goes to the dealer who is trying to pass off oregano as pot. If the defendant is arrested before any transfer of money or the fake pot takes place, there has been no crime committed, not even the attempted possession of pot, because, even if the sale had been completed, the defendant would never have been in possession of pot. (Under Arizona law, where I practice, if the sale had been completed, the defendant would be guilty of attempted possession of pot, which is a lesser offense subject lesser penalties.)
So, how does that apply to the case of the Swedish cis man accused of trying to rape a trans woman? What may have happened is that the indictment specifically charged the defendant with attempting to rape a woman, but, for whatever reason, Swedish law does not recognize the victim as a woman. That would make it impossible to commit the type of rape the defendant was charged with, resulting in his acquittal on that charge. If that is, in fact, what happened, then the fault in this case lies with the prosecutor for charging the defendant with a crime he could never have committed, and with Swedish law for failing to recognize the victim as a woman. I still, however, see no basis for laying all the blame on the judge, as many have done.
Of course, without seeing an English translation of the indictment, it’s impossible to know whether this is, in fact, what happened. This update is merely my best guess, based on the articles I’ve read and my knowledge of U.S. law. Regardless of what actually happened, however, my point is to illustrate that life, especially when it comes to the law, is always much more complicated than it appears on the surface, and the dangers, and unfairness, of picking out the the most obvious target, accusing them of bigotry, and blaming them for problems that have much broader, systemic causes.
(My thanks to this article at Hypervocal for the link to the English version of Sweden’s rape law.)