sou · H9B343 · 2022-01-01 00:00:00 — •Presence in real time should not be required. •In crimes committed remotely, the assault should not need to be documented for it to constitute a crime. Regulation in the future Changes to the penal provisions on rape and sexual assault (and equivalent crimes against children, the less gross crimes and crimes of negligence) are required if they are to comply with the principles above. Our assessment is that the criterion “genomföra” (perform) must remain in the penal provisions in question. Additionally the criterion “förmå” (induce) must be added to the text of the statute. This would include actions that involve the perpetrator in some way having influenced the victim to perform an act. In other words, there must be a link between the actions of the perpetrator and the sexual act performed by the victim. Because “induce” is a relatively low criterion, qualification is needed to ensure that criminalisation is not too far-reaching. There- fore, criminal responsibility is to be contingent upon the perpetrator exerting illegal force or otherwise inappropriately inducing the victim to perform the sexual act. The assessment of whether the behaviour was inappropriate is to be made based on a holistic assessment incorporating the purpose of the perpetrator’s actions and whether the behaviour exceeds what is acceptable. If the perpetrator is an adult and the victim is a child or a person with reduced capacity to protect themselves from pressure, relatively limited pressure can be considered to be inappropriate. Another criterion is that the influence of the perpetrator leads to the victim in some way enduring the sexual act. We have chosen to use the term “företa eller tåla” (undertake or tolerate). This covers both the situation in which the act is undertaken by the victim and the situation in which the act is endured by the victim without their having any choice. We therefore propose that an addition be made to the penal provisions on rape, sexual assault, rape of a child and sexual assault of a child with the meaning that the criminal liability should apply to anyone who otherwise through illegal force or otherwise in an inappropriate induces a person who is not participating voluntarily, or a child under the age of 15, to undertake or tolerate such treatment. The proposed addition also covers sexual exploitation of a child (sexuellt utnyttjande av barn), negligent rape (oaktsam våld- täkt) and negligent sexual assault (oaktsamt sexuellt övergrepp). The Inquiry’s remit in this respect was to analyse the area of appli- cation for sexual molestation (sexuellt ofredande) and judge whether the penalty provision is appropriately worded. We have particularly been tasked with forming an opinion on the question of whether photography at a certain distance is to be criminalised. Within the remit of the review of the range of punishments (see below), we have also had to consider whether a separate range of punishments for gross sexual molestation should be introduced. Content of the penalty provision The penalty provision on sexual molestation targets acts that by their nature do not meet the full criteria to be judged to be sexual acts and thus covers a large number of acts. Following a review of case law in the lower courts in recent years, we have found, largely due to the recent case law of the Supreme Court, that the penalty provision is appropriate in all essentials. However, in order to make it clear that children enjoy special protection against sexual abuse, we propose that all sexual molestation directed at children under the age of 15 years be regulated in a specific penal provision to be termed sexual molestation of children (sexuellt ofredande mot barn), where fines are not to be part of the range of punishments. In accordance with our remit, we have formed an opinion on whether photography is to constitute sexual molestation to a greater extent. Such a need might be founded in the greater opportunities to document different situations brought by recent technological developments. However, there is no general prohibition on taking photographs of anyone without their consent. Criminal responsibility for such actions only exists under certain special circumstances. In NJA 2017 p. 393 the Supreme Court has found that photography that takes place in the immediate vicinity of the victim may constitute such a clear encroachment on the victim’s right to decide over their own body that it constitutes sexual molestation. In addition, the penal provisions on intrusive photography (kränkande fotografering), unlawful breach of privacy (olaga integritetsintrång), child porno- graphy offence (barnpornografibrott) and molestation (ofredande) provide certain protection from photography and against the documentation subsequently being spread further. In assessing whether the area of application for sexual molestation is to be extended to cover photography, the special position that photography has within the constitutional protection of free- dom of expression and freedom of information great weight. All in all, we have not found that there are grounds to expand the area of application of sexual molestation in the way we have been tasked with considering. Exploitation of a child for sexual posing The remit in this respect involves forming an opinion on the principles that should apply to the crime and whether the penalty provision should be changed. The purpose of the penal provision is to protect children from being exploited for sexual posing (sexuell posering), which under the Swedish Penal Code refers to participation in or performance of a sexual act or undisguised exposure of sexual content. However, the protective interest is not to more generally protect children from being viewed or depicted entirely or partly naked. conditional on the case involving sexual posing. Posing is to have a clear and unambiguous sexual content for an adult. To determine whether the posing is of this nature, an assessment must always be made of the circumstances in the individual case. The fact that a child is engaged in everyday activities while lightly clad or naked, without the influence or instructions of the perpetrator, can as a rule not be considered to be of such nature. If, on the other hand, it is a matter of sexual posing that has a clear and unambiguous sexual content for an adult, in our view it is irrelevant how the body of the child is placed in that situation. We have found that the penal provision is largely appropriate. However, if the child was passive and thus cannot be considered to have performed or participated in the posing, the penal provision has not been judged to be appropriate. We consider this to be a short- coming. We therefore propose that the person who has placed the child in, or exploits the child being in, a situation that involves sexual posing, be convicted of exploitation of a child for sexual posing. This addition would also include actions where the child was completely passive for any reason and placed in the sexual pose by the perpetrator or another person. Review of the range of punishments for sexual crimes Our remit in this respect was to review the range of punishments for all crimes in Chapter 6 of the Penal Code and submit proposed amendments that may be required for these to sufficiently reflect the seriousness of the crime. Additionally we are to propose amendments to the range of punishments for the purchase of sexual services that involve raising the minimum penalty from fines to imprisonment. We have also been tasked with analysing and forming an opinion on whether a new crime should be introduced named gross sexual molestation (grovt sexuellt ofredande). According to the terms of reference, the reasons for such a review are that changes have taken place to the range of punishments for other crimes, including serious violent crime. A review therefore needs to be carried out with the aim of ensuring that the penal system fulfils the requirements of equivalence and proportionality. A further reason has to do with the changed, stricter view that society now takes of sexual crimes as expressed in public debate and announced by the Riksdag. The Inquiry’s general considerations The penalties for the most serious violent crimes have been made tougher in recent years, partly as a result of a stricter view being taken of such crimes. We judge that a stricter view is now also being taken of sexual crimes. No generally stricter penalties have been introduced covering all sexual crimes. However, the sexual crime reforms of recent decades have meant more types of acts being judged to be more serious, which has also led to these acts being viewed more strictly under penal law. One such example is that since 1 2018, it has not been required that improper means (otill- börliga medel) are used for an act to be defined as rape. Furthermore, the view of sexual crimes against children under penal law has had a tangible impact on legislation, not least through the introduction of the crime of rape of a child (våldtäkt mot barn). In our view, the tougher view taken of sexual crimes has had an impact in legislation in all essentials. We have therefore judged that for these reasons there are no grounds to generally make the penalties for sexual crimes more stringent. However, there is such a need regarding certain types of crime, such as less gross cases of rape, where the tougher view cannot be considered to have had sufficient impact. have we found that making the penalties tougher in general would be appropriate to reduce criminality. However, we have found that we must also take into account the parliamentary aspect as expressed in the announcements made by the Riksdag to the Government regarding several of the sexual crimes. Therefore, we have chosen to submit those proposals that address the announcements made by the Riksdag to the extent that these do not bring about unacceptable consequences. Regarding sexual molestation, the remit includes considering whether a gross crime classification should be introduced and in all circum- stances submitting proposals for such a regulation. In this regard, we consider that a gross crime should be introduced, both for sexual molestation and for sexual molestation of a child, with a minimum penalty of six months’ imprisonment. When assessing whether the crime is gross, particular attention must be paid to whether the perpetrator showed particular ruthlessness in view of the young age of the victim or more than one person participated in the assault or otherwise. Our proposals for the ranges of punishments On the basis of the considerations above, we propose the following amendments to the ranges of punishments for sexual crimes. •The minimum penalty for rape (våldtäkt) to be increased from two years’ imprisonment to three years, while the minimum penalty for rape that is less gross (våldtäkt som är mindre grov) is to be increased from the minimum custodial sentence to imprisonment for six months. •The minimum penalty for sexual assault (sexuellt övergrepp) to be increased from the minimum custodial sentence to six months’ imprisonment and a special range of punishments – imprison- ment for a maximum of one year – to be introduced for sexual assault that is less gross (sexuellt övergrepp som är mindre grovt). •The minimum punishment for gross sexual assault (grovt sexuellt övergrepp) to be increased from six months’ imprisonment to one year’s imprisonment. •The minimum punishment for rape of a child (våldtäkt mot barn) to be increased from two years’ imprisonment to three years’ imprisonment. •The minimum punishment for sexual assault of a child (sexuellt övergrepp mot barn) to be increased from the minimum custodial sentence to six months’ imprisonment, and a special range of punishments – imprisonment for a maximum of one year – to be introduced for sexual assault of a child that is less gross (sexuellt övergrepp mot barn som är mindre grovt). •The minimum punishment for gross sexual assault of a child (grovt sexuellt övergrepp mot barn) to be increased from one year’s imprisonment to imprisonment for one year and six months. •Fines are to be removed from the range of punishments for exploitation of a child for sexual posing (utnyttjande av barn för sexuell posering). •Fines are to be removed from the range of punishments for purchase of sexual services (köp av sexuell tjänst). •The minimum punishment for exploitation of a child through the purchase of a sexual act (utnyttjande av barn genom köp av sexuell handling) is to be increased from the minimum custodial sentence to six months’ imprisonment, and a special range of punishments – imprisonment for a maximum of a year – is to be introduced for exploitation of a child through the purchase of a sexual act, less gross crime (utnyttjande av barn genom köp av sexuell handling, mindre grovt brott). •All cases of sexual molestation of a child under the age of 15 are to be judged as sexual molestation of a child, and the range of punishments is to be imprisonment for a maximum of two years. For gross sexual molestation (grovt sexuellt ofredande) and gross sexual molestation of a child (grovt sexuellt ofredande mot barn), a separate range of punishments is to be introduced of imprison- ment for a minimum of six months and a maximum of three years. •It is proposed that other ranges of punishments should not be amended. examinations to secure forensic evidence after sexual crimes At the request of the Swedish Authority, doctors in the public healthcare service are obliged under Chapter 6, Section 9 of the Patient to conduct examinations to secure foren- sic evidence after sexual crimes. This ruling is appropriate and should be retained. are there grounds to amend the provisions regarding the criminal investigation authorities’ handling of the sexual assault evidence collection kits in these cases. However, there is no obligation for the healthcare service to conduct examinations to secure forensic evidence without such a request, e.g. when an individual voluntarily seeks treatment following sexual assault. Thus there is no clear regulation of the responsibility to conduct examinations to secure forensic evidence in sexual crimes unless this is subject to Chapter 6, Section 9 of the Patient , and there is a no regulation of how long the sexual assault evidence collection kit is to be kept for. There is also a lack of clarity regarding other aspects of the healthcare service conducting examinations to secure forensic evidence, such as whether the provisions in the field of healthcare are to be applied when securing forensic evidence, regardless of whether the victim has reported the assault to the . The remit to evaluate improvements in the investigation of sexual crimes In the light of the lack of clarity as regards examinations conducted by the healthcare service to secure forensic evidence, our remit was to •investigate the responsibility of the healthcare service for examinations to secure forensic evidence following sexual crimes, including whether it is the healthcare service or another actor that should be ordered to keep the sexual assault evidence collection kit for a certain period of time, and clarify responsibility for the costs of sexual assault evidence collection kits, •form an opinion on how supervision of examinations to secure forensic evidence should be conducted, •analyse whether regulations should be introduced stating that examinations to secure forensic evidence may only be conducted with the informed consent of the victim of crime and clarify what is applicable if the victim no longer wishes the sexual assault evidence collection kit to be kept, •in this context clarify whether there is a need to review the question of the consent of parents or guardians to examinations of children to secure forensic evidence, based on the fact that forensic evidence must be able to be secured when this is judged to be in the best interests of the child and also in cases where the consent of the parent or guardian has not been obtained, •consider and form an opinion on how data from examinations to secure forensic evidence should be documented and analyse whether further regulation is needed regarding the processing of personal data that takes place when the healthcare service conducts examinations to secure forensic evidence, •submit necessary proposals for legislation, and •if it is proposed that the division of responsibility between differ- ent actors is to be amended, where necessary submit proposed amendments to secrecy rules that enable data to be transferred between different actors. A new Act on examinations conducted by the healthcare service to secure forensic evidence following sexual crimes is to be introduced The healthcare service currently conducts examinations to secure forensic evidence whether a victim of a sexual offence comes into the healthcare service following an assault with the help of the , who in turn request a examination to secure forensic evidence under Chapter 6, Section 9 of the Patient , or whether the victim seeks healthcare independently following the assault. This is in line with the recommendations of on Men’s Violence Against Women’s Hand- book, National Action Programme for the Health Care and ’ Reception and Care of Victims of Sexual Assault. that there is no alternative than the healthcare service to carry out examinations to secure forensic evidence. The examination should be carried out as part of the first visit to the healthcare service and as part of treatment, as otherwise there is a risk of contamination of the evidence. We have further judged that there is a need for special legal regulation to clarify responsibility for the healthcare service’s examinations to secure forensic evidence in cases where the victim of sexual assault has not reported the case to the , and to strengthen patient safety in examinations to secure forensic evidence in general. To enable the working method of the healthcare system in treating victims of sexual offences to comply with the rule of law, and be equitable and consistent across the whole country, we therefore propose that a new Act on examinations by the healthcare service to secure forensic evidence following sexual crimes be introduced. The Act is to regulate who is to be responsible for the examinations to secure forensic evidence conducted by the healthcare service that are not carried out at the request of the , and certain other questions relating to this. Besides those provisions concerning regulation of responsibility, the provisions of the Act must also be applied to examinations conducted by the health service to secure forensic evidence following a sexual crime under Chapter 6, Section 9 of the Patient . We do not propose a common regulation of responsibility for examinations to secure forensic evidence carried out under Chapter 6, Section 9 of the Patient and that to be set out in the new Act. The region is to be responsible for offering individuals the opportunity to have a examination to secure forensic evidence following sexual crimes and for saving the samples According to our proposal, the regions are to be responsible for offering victims of sexual crimes the opportunity to have a examination to secure forensic evidence when this is not carried out at the request of the Swedish Authority under Chapter 6, Section 9 of the Patient . This would thus ensure that securing forensic evidence becomes part of the region’s expanded operations with good expertise, good public trust, established practice of working on the basis of science and tried and tested experience, and improved likelihood of appropriate geographical spread across the country. The region is also to be obliged to store the samples and the findings from examinations to secure forensic evidence for two years, in line with the recommendations of on Men’s Violence Against Women’s Handbook, National Action Programme for the Health Care and ’ Reception and Care of Victims of Sexual Assault unless these are handed over to the Swedish Authority or a public prosecution authority before that date. However, this obligation does not prevent the health- care service from saving the sexual assault evidence collection kit for a longer period. Provisions to protect the individual In our view, examinations of the victim to secure forensic evidence should not be covered by the definition of healthcare in the Health and Act because the measures are not carried out for the purposes of prevention or as care or treatment of an illness or injury. The statutory regulation that applies in the field of healthcare services is thus not directly applicable. With the aim of providing the victim of a sexual crime with good protection in terms of safety and privacy, we propose, on the other hand, that the Patient , the Act and the Patient be made applicable to the examinations to secure forensic evidence covered by the proposed Act. Examinations to secure forensic evidence must not be carried out without the individual’s consent. The individual is to be given the necessary information about this and about how the samples and findings will be processed. The fact that consent has been given for all or certain measures in an examination to secure forensic evidence must be documented in the patient notes kept under the Act. If the victim of sexual assault is a child, the child’s view on the examination must be ascertained as far as possible. Health and secrecy under Chapter 25, Section 1 of the Public Access to Information and Secrecy Act will be applicable to forensic evidence collection by the healthcare services without any This secrecy is revoked in cases of rape, attempted rape and all crimes against children. This means that, in these cases, the healthcare service is to disclose information that it possesses at the request of e.g. a prosecutor or the , unless the information is subject to secrecy or this would prevent the due performance of the work (Chapter 6, Section 5 of the Public Access to Information and Secrecy Act). There is no need to expand the current secrecy provisions on the disclosure of information by the healthcare service to other agencies in a forensic evidence collection situation. As a basic rule, the sexual assault evidence collection kit must not be handed over to the investigative authorities without the victim’s consent. However, in the same way as the issuing of forensic reports, for example, exceptions should be made for requests for disclosure from the Swedish Authority or a public prosecution authority in the case of suspected more serious sexual crimes or suspected sexual crimes against children. A sexual assault evidence collection kit must not otherwise be handed over by the healthcare service to anyone other than the investigative authorities without the victim’s consent. Processing of personal data and documentation Act is to apply to the processing of personal data by the healthcare service in conjunction with examinations to secure forensic evidence. The processing of personal data by the healthcare services only becomes relevant when data as part of an examination to secure forensic evidence is entered in the patient’s records or is otherwise processed automatically and not in conjunction with the processing or storage of the sexual assault evidence collection kit. As a general rule, the processing of personal data that accompanies the collection of forensic evidence is covered by the Protection Regulation. However, it is possible that in some parts of the examination to collect forensic evidence, the processing of personal data could also be covered by the Act. The data protection regulations could in such cases be applicable in parallel if the processing of personal data has different purposes.