DEBATE: Government bill proposes different penalties for the same offense

DEBATE – by Gabriella Kärnekull Wolfe, Ombudsman against commercial sexual exploitation of children and Cassandra Hedberg, President of the organization Not Your Whore.

Two weeks ago, the Government presented proposals to amend the law on the exploitation of children through the purchase of sexual acts. In previous statements and press releases, the government has seemed forward-thinking on the issue of protecting children from being sexually exploited, but in the latest proposals we see that this is not the case.

On July 2 this year, a number of changes will enter into force in Sweden’s legislation on sexual offenses. This is what the government proposes in its bill published on February 25. The title of the consultation is “Tighter approach to rape and other sexual offenses”, but what we see when it comes to crimes related to the commercial sexual exploitation of children is that the changes involve small improvements that do not address the basic problem in the legislation. It is clear that the Government has not listened to consultees or opposition parties who have called for all children, regardless of age, to be protected equally.

The Government proposes, among other things, that the minimum penalty for the exploitation of children through the purchase of a sexual act be increased to six months’ imprisonment and that the offense be made a so-called “species crime”. This means that those convicted of the crime will generally be sentenced to imprisonment, which was not the case under the previous legislation. The proposal is a clear improvement from the past, but it is fundamentally inadequate as it completely sidesteps the fundamental issue of equal rights for all children.

Civil society organizations, consultative bodies and several opposition parties have continuously highlighted the need to not only increase the penalty for the exploitation of children through the purchase of sexual acts, but to harmonize the crime with other sexual crimes against children. In an opinion piece last year, four young victims wrote about how the current system implicitly makes some children partly responsible for the abuse they suffered. This is because the law on the exploitation of children through the purchase of a sexual act, with a minimum sentence of six months’ imprisonment under the government’s new proposal, only applies to children aged between 15 and 17. For children under 15, the same act counts as child rape, which under the government’s new proposal carries a minimum penalty of three years’ imprisonment.

Thus, although the violation for the children is equal, the difference in legal protection is marked. The reason why only children up to the age of 15 are protected from all forms of sexual acts is that the legislator does not want children over 15 to be prevented from exploring their sexuality. But that argument should never affect children’s right to protection from sexual offenses. Already by criminalizing the exploitation of children through the purchase of a sexual act, we as a society have said that this is not part of children’s exploration of their sexuality and thus it is unreasonable that the child’s own sexual development should diminish the perpetrator’s responsibility in the sexual crime.

The fact that the child’s sexual development should not affect the perpetrator’s criminal liability for sexual offenses is a recurring criticism from several of the consultative bodies, but in its legislative proposal the government dismisses the criticism by referring to the fact that perpetrators who buy sex from children can already be convicted of rape or negligent rape if the child is under 15 years of age or if a child over 15 years of age does not participate voluntarily. But in practice, it is clear that this is not the case. One of many examples is a judgment from the Stockholm District Court from January 2021 where seven men were convicted of buying sex from a child on a total of 16 occasions and none of them were sentenced to prison.

Instead, the starting point must be that even children aged 15-17 never voluntarily participate in a sexual act when there is payment. As the legislation stands today, the prosecutor does not have sufficient opportunities to use the rape section in the indictment as the purchase of sex in itself is not enough to be classified as rape. A child can never voluntarily “sell sex”, but any attempt to give a child payment in exchange for sexual acts is in itself an exploitation of the child and puts the child in a situation of dependency. Therefore, this crime should always be classified as rape regardless of the circumstances.

In its consultation, the Government also proposes that a new offense of child exploitation through the purchase of a sexual act be introduced for cases where the offense is “less serious”. As an example, the government highlights cases where the victim is close to 18 years of age and the difference in age between the victim and the offender is small. This proposal has also been criticized by several major consultative bodies such as the Swedish Prosecution Authority and the Swedish Gender Equality Agency, but despite this, the government is going ahead with the proposal. The violation for the child who is subjected to the abuse is just as great regardless of how old the perpetrator is, as several studies have shown. Introducing the category “less severe” also risks placing further responsibility and blame on the victim by belittling their experience.

All children should have an equal right to protection from sexual violence and sexual abuse. Continuing to allow the child’s sexual self-determination to have a mitigating effect on the perpetrator’s criminal liability inevitably means that the child’s own sexuality is considered to be part of the sexual violence to which the child is subjected. This is contrary to the principles of both the Convention on the Rights of the Child and the Lanzarote Convention, to which Sweden has committed itself.

While several of the organizations that daily face and fight for measures that address the rights of all children subjected to commercial sexual exploitation, the government takes this opportunity to actively dismiss such a measure. The biggest losers are the children.

The article is published at Dagens Juridik