12/07/2022
As people debate the proposal to narrow the possible sentencing options for the offence of paying for s*xual contacts (yes wording has changed a tad over time)
We think it’s worth looking back to 2010 just before the maximum penalty was doubled from 6 to 12 months prison..
Plus consider that since r**e laws were changed in 2018, 4/5 of the examples given below that were used to argue for increased maximum penalty have since been explicitly included in other offences listed earlier in chapter 6 of penal code. Which means that the s*x purchase offence does not apply- since it can only be applied to cases which fail to meet all of the offences listed prior to it in chapter 6. (Which includes r**e and negligent r**e and numerous offences around s*xual exploitation and abuse of children and youth)
But back to the main point- about how Sweden increased the range of penalty options for sentencing in 2012- following the 2010 “evaluation”.
As you can see below, several arguments were used…one point was that more policing could be done if penalty increases but since that is a problematic argument by itself..we will focus on the other arguments which at least have some semblance of being remotely possible to consider without automatically ringing every known alarm bell …
Consider the infamously biased 2010 so-called “evaluation”- [it’s an evaluation in the sense of: “what can we find here to help us promote the Swedish model abroad?” …rather than any kind of critical assessment of how things had turned out in practice…]
In this quality document there was a section dedicated to arguing that the “Maximum penalty for the purchase of s*xual services should be raised”
As stated in the official English translation of select parts of the “evaluation”,
“In our view, variations between different s*xual purchase offences are far too seldom taken into account when deciding on a penalty.
From the review of current practice undertaken by the Inquiry, it is clear that in some cases there is reason to take a more serious view of the offence than has been the case in practice.
Examples of such cases include
-exploitation of a person
with a psychiatric disability,
-contact being made through a
third party or an ordering service,
-exploitation of one person for several hours
by several s*x purchasers or
-exploitation of a young person or
-a person under the influence of drugs.
In our view, the current level of penalties for certain s*xual purchase offences is not proportionate to the seriousness of the crime.
There is a need to be able to make a more nuanced assessment in more serious cases of the purchase of s*xual services than is possible within the current penalty scale for the offence.
We therefore propose that the maximum penalty for the purchase of s*xual services be raised from imprisonment for 6 months to imprisonment for 1 year.”
….
Directly after this, the same “evaluation” discusses the issue of how the law is constructed in relation to who the victim is or whose interests are being protected by the s*x purchase law.
The evaluation reaches the conclusion that,
“The person exploited in prostitution may normally be considered the injured party”
How certain are they about this?
Well…not exactly 100% but probably it’s maybe possible…?
Look, there’s no reason to assume it is IMPOSSIBLE to treat the person who is paid for s*xual services as the victim of the crime of paying for s*xual services…
For anyone paying close attention to what is being written and the situation found in reality, it becomes obvious that the lack of absolute certainty around this question comes from the fact that at this point in time, after just over a decade of the s*x purchase law being enforced- there is still not even one known case where the victim of the crime is officially the person who was paid for the services. This is, to the best of our knowledge, still the case to this day. In any case the vast majority (but probably all) of charges for s*x purchase have been laid under pretence of protecting societal interests.
But the report chooses to describe things another way:
“Neither legislation nor legal doctrine offer a clear answer to the question of who is to be considered an injured party.
In our assessment, there is nothing to prevent a person who has been exploited in prostitution from having the status of injured party in proceedings concerning the purchase of s*xual services.
An examination should be undertaken in each case to determine whether the person providing the s*xual service is so directly affected by the offence that she or he should be entrusted with exercising the public function implied by a penal claim.”
The evaluation also noted:
“Our review of the judgments and summary fines imposed during the period studied shows a great deal of uniformity in terms of assessment of penal value and choice of penalty.
Since the Supreme Court examined the question of culpability in a case of the purchase of s*xual services in 2001 (NJA 2001, p. 527), more than 85 per cent of all prosecutions for individual instances of such purchases have resulted in a penalty of 50 ‘day fines’.
The offence is generally reported rather summarily, and judgments seldom refer to any extenuating or aggravating circumstances associated with the offence.
When the ban was introduced, some feared that it would be difficult to monitor compliance with the ban and to define and prove the criminal act.
However, our investigation of the application of the ban shows that, following an initial period of some uncertainty, police officers and prosecutors now consider that in general the provision works well. The prosecutors with whom the Inquiry has spoken have stated that they do not currently see any application problems directly linked to the penal provision.
Sexual purchase offences are usually considered to be easy to investigate and relatively uncomplicated to process.
There can be evidentiary problems, but almost half of the offences reported have been linked to an individual, meaning that a decision has been taken either to bring charges, impose a summary fine or grant a waiver of prosecution. This is double the number compared to other reported s*xual offences.
The uncertainties that remain when it comes to applying the provision concern whether those who have been exploited should be considered witnesses or injured parties in court proceedings, and the point in time at which an attempted offence has been committed.
It is considered difficult to prove attempted crimes, with the result that, in connection with street prostitution, the police deliberately wait until the s*xual act has begun before intervening, and the offence has thus been committed.”