Opinion piece: “Strict liability for perpetrators of child sexual exploitation”

Under the Convention on the Rights of the Child, Sweden has undertaken to ensure equal protection against sexual abuse for all children up to the age of 18. However, there are currently gaps in legislation for children who are victims of commercial sexual exploitation. To ensure the protection of children, Sweden should follow the example of the UK and the Netherlands by introducing strict liability for perpetrators who abuse children for money.

A child rights perspective in Swedish legislation is a relatively new phenomenon, especially in legislation concerning sexual offenses. It was not until the 1965 Criminal Code that children were considered victims of sexual offenses, and it was not until 2005 that the requirement of violence in connection with rape against children was abolished. In 2005, the commercial sexual exploitation of children was also criminalized by the introduction of the offence of purchase of a sexual act from a child into the legislation.

In 2020, the protection of children subjected to commercial sexual exploitation was further strengthened by removing fines from the penalty scale, increasing the maximum penalty to four years’ imprisonment, and changing the definition of the crime to the current exploitation of children through the purchase of a sexual act. In addition, the Convention on the Rights of the Child became Swedish law, which meant that Sweden undertook to ensure that all children up to the age of 18 have their rights under the Convention fulfilled.

In other words, legislation for child victims of sexual offenses has been strengthened over the years as knowledge of children’s rights and the consequences of this type of crime has increased. What has not changed at the same pace, however, is the responsibility to check that it is not a child who is being exploited. This is regulated by the negligence provision, which states that a perpetrator can only be convicted of sexual offenses against children if he understood or should have understood the age of the child.

This means that an offender can exploit a child through the purchase of a sexual act but still be convicted of buying sex from an adult if the court finds that he did not understand or should not have understood the age of the child. In this case, the offender will receive a significantly lower sentence and the child will not have access to compensation.

The ‘negligence’ provision was introduced into legislation in 1962 but has been amended over the years. Most recently, in 2018, a review of cases found that one in five prosecutions for sexual offenses against children were dismissed because it could not be ensured that the perpetrator actually knew the age of the victim – partly because the child had gone through puberty. Using a child’s pubertal development as a basis for assessing age was then said to be problematic as it is individual and dependent on various factors such as ethnicity and social circumstances. Even though the negligence requirement since 2018 should not focus primarily on the child’s pubertal development but take into account all the circumstances of the offense, it still remains as a basis for assessment.

To address the problem and ensure that all children up to the age of 18 are equally protected against commercial sexual exploitation, we need to take the next step in the development. This is done by tightening the negligence provision to strict liability. Strict liability in this context means that a person can be convicted without there being either intent or negligence in relation to the child’s actual age – in other words, it is not the perpetrator’s or someone else’s understanding of the age that forms the basis for the conviction, but the age itself. In principle, strict liability is not currently used in criminal law, partly because it is said to deviate from the requirements of the principle of guilt – that is, that the act for which the person is convicted has been committed with intent or negligence.

However, even if strict liability today were to deviate from the Swedish view of the requirements of the guilt principle, there is reason to make exceptions in cases of certain sexual offenses – especially in relation to age.

One reason is that the principle of guilt can be seen as already fulfilled by the choice to pay for a sexual act regardless of the age of the victim. This is because buying sex is currently illegal in Sweden. This means that there is intent to commit an illegal act and it should therefore be possible to make higher demands on a perpetrator who also does this to a child.

Another reason for making an exception to this is that the European Court of Human Rights has concluded that strict liability in relation to the age of the child does not deviate from the requirements of the culpability principle in cases of rape against children. They argue that States Parties have an obligation to protect vulnerable individuals from sexual abuse, which means that States also have a wide discretion to assess which tools should be used to ensure this protection. Strict liability can therefore be a relevant tool to protect children who are sexually abused and is already in legislation in several countries – including the UK and the Netherlands.

Another argument used against introducing strict liability is that it is alien to Swedish criminal law. But this is not entirely true. Although we do not currently have strict liability implemented in criminal law, there are similar liability requirements in alcohol legislation, for example. There, this is used on occasions when a person hands out alcoholic beverages to someone else. On these occasions, the person providing the alcoholic beverage has a duty to ascertain the age of the recipient. It should therefore also be possible to implement this in the legislation on the exploitation of children through the purchase of sexual acts.

We can see from the history of Swedish legislation that children’s rights have not always been taken into account, and that a children’s rights perspective in legislation is a relatively recent phenomenon that has occurred gradually. Continuing to move forward to create legislation that is legally secure for children who are subjected to commercial sexual exploitation should therefore be obvious. In the Sweden of the future, legislation cannot be based on a child’s pubertal development. In the Sweden of the future, we cannot have a negligence assessment that continues to place responsibility on the children who are exposed. In the Sweden of the future, it is time to take a big step forward to protect children by introducing strict liability.

Gabriella Kärnekull Wolfe, Ombudsman against commercial sexual exploitation of children
Jacob Flärdh, Secretary General Child10
Nathalie Wallentinson, lawyer

Read the article in Dagens Juridik