The Swedish Ban: The Debate over Criminal Sentences
With just over one month to go until Anna Skarhed delivers her completed evaluation of the Swedish ban on the purchase of sexual services, Swedish commentators and journalists continue to focus attention on the severity of sentences that have been handed down in conjunction with sex purchase convictions. One particularly contentious exchange recently took place in the op-ed pages of the liberal daily Dagens Nyheter in May, when author/journalist Katarina Wennstam alleged that the “obsolete attitudes and patriarchal structures” of the Swedish legal system are to blame for what she regards as excessively mild sentences — fines that are proportionately too low in relation to the income of the accused. (While the current legislation allows for sentences of either fines or up to six months imprisonment, a ruling by the Swedish Supreme Court established the precedent that no sentence greater than fines would be imposed.)
Wennstam pointed to cases in which men in positions of power — “highly positioned CEOs” and “municipal directors” — were able to avoid formal charges when prosecutors chose not to pursue their cases any further, even when admissions of purchasing sex had been made. To further substantiate her argument, Wennstam referred to an April 2010 reportage on Swedish Radio’s Kaliber program, in which data was presented showing that excessively low fines had been levied in half of the instances. Noting that other criminals in Sweden largely don’t receive this preferential treatment, Wennstam stated that, “I can’t escape the feeling that men who buy sex, who are often well-established members of society, have an easier time in securing understanding of their situation from lawyers, who are also well-established citizens.”
Arguments such as Wennstam’s are not difficult to locate. Professor Madeline Leijonhufvud, asked by Kaliber to comment on the findings of the reportage, reached a similar conclusion, noting that “(Fines that are too low) are a sign that this crime is receiving preferential treatment and that there is a prevailing understanding that (purchasing sex) is a less serious crime.” In 2009, Stockholm city prosecutors and criminal inspectors were cited in a Svenska Dagbladet story as saying that the Swedish judiciary needed “to shape up” and see that probation for repeat offenders was necessary, as fines — even large ones — were not proving to be an effective deterrent for men who sought to purchase sex.
Yet, just over a week after Wennstam’s article appeared, Malmö District Court Judge Monica Nebelius responded in Dagens Nyheter with a sharply-worded rejoinder to Wennstam, taking strong issue with the allegation that prejudice and old-fashioned attitudes are the key causal factor determining the level of fines that men convicted of purchasing sex must pay. According to Nebelius:
The legal system that we have today is not populated by upper middle aged men who live a detached, conservative life marked by patriarchal structures. For the most part, it’s judges in their forties who are holding the gavel. A very large portion of them are actually women, who are parents of small children, and share the same everyday experiences as the rest of us. Many of us are active in addition to our role as judges and engage in work on questions such as prostitution, human trafficking and the problems that arise in conjunction with those questions.
The prejudices and antiquated ways of thinking described by Katarina Wennstam are — with one exception — not something that I have experienced when I have lectured throughout the country. I would dare to say that, within the judiciary, there is continuous discussion as to values, and that there is great vigilance against the type of degenerative views that Katarina Wennstam speculates about in her article. This is also true of prosecutors.
Nebelius concludes by stressing the importance of an ongoing societal debate regarding the purchase of sex, the crucial role of demand, and the significance of the current legislation, but emphasizes that such a discussion “is made more difficult by this type of simplified argumentation being put forward by Katarina Wennstam.” (An earlier critique of Wennstam, rejected by the editors of the op-ed page at Dagens Nyheter, was published at newsmill.se shortly before Nebelius’s article. In it, former prosecutor Rolf Hillegren leveled similar accusations against Wennstam’s framing of how fines were set.)
Nebelius’s critique is intriguing because it comes from a well established figure within the Swedish legal system, one with substantial experience in examining various facets of the commercial sex trade. In dismissing Wennstam’s argument that “obsolete attitudes and patriarchal structures” are causally important in this instance, and by characterizing her overall logic as faulty, muddy and simplified, one might have easily concluded that Nebelius belongs to the comparatively small number of public figures in Sweden who question the conventional wisdom underpinning the sex purchase ban.
However, to do so would be a mistake. Nothing in Nebelius’s op-ed piece suggests a blanket dismissal of attitudes or structure (patriarchal or otherwise) as being potentially important for understanding prostitution policy outcomes. Indeed, Nebelius is quite clear that she seeks a debate on “how those who purchase sex should be punished and how the legislation can be improved.” There, her stance is fully consistent with the Department of Justice’s requirement that “a point of departure (for Anna Skarhed’s forthcoming evaluation) is that the purchase of sexual services shall remain criminalized.” Rather, Nebelius’s critique is limited to how Wennstam develops an argument on the basis of unsubstantiated assumptions about allegedly prevalent attitudes in the Swedish legal system. At its most basic level, Nebelius’s article can be read as calling for a debate over sex work that rests more firmly on a carefully constructed and evidence-based logic.
Of course, it remains to be seen whether Nebelius’s caveat will be taken to heart by those who debate prostitution policy reform and implementation. It has become something of a conventional wisdom to refer to the Swedish prostitution policy debate as highly infected. In such a climate, where policy goals as well as assumptions over cause and effect are so deeply entrenched as to be taken for granted, how will people respond to a call that their assumptions should be examined critically, against the weight of available evidence?
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