Fighting Domestic Violence

Sweden

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5. Prosecutorial considerations
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5. Prosecutorial considerations Start Comparison
5.1 Police procedures
5.1.1 When do the police get involved in domestic disputes or legal actions?

The police get involved whenever a potential crime comes to their attention.

5.1.2 What circumstances effect law firm involvement?
A legal representative (private practitioner) (målsägandebiträde), paid for by the state, will usually be appointed to support the crime victim. The perpetrator will also be assigned a public defender (private practitioner paid by the state).
5.2 Standard of proof
5.2.1 Is proof required by any legal means?
Yes.
5.2.2 Are there any requirements regarding evidence and documents?
No, but any supporting material would be in favor of the victim. Sweden applies the principle of free evaluation of evidence. 
5.2.3 Is proof "beyond a reasonable doubt" required?
Yes.
5.2.4 Is the standard of proof different for ex parte orders?
No.
5.3 Affirmative defenses
5.3.1 Are affirmative defenses available to the accused?
Yes.
5.3.2 Is willful intent required?
For most of the crimes that may appear in a domestic violence context, such as assault and rape, willful intent is required. However, some acts are also criminalized when committed as a consequence of negligence, such as causing bodily damage or someone's death. As will be described below, Sweden also has a consent legislation for rape.
5.3.3 Are false accusations punishable for the victim?

Yes. Under Chapter 15, Section 7 of the Swedish Penal Code, a person who untruthfully accuses another person of a criminal act, alleges a compromising circumstance, or denies an exonerating or extenuating circumstance before a prosecutor, the Swedish Police Authority or another public authority is, if the authority is obliged to receive a report of this kind, guilty of making a false accusation.

5.3.4 How is consent discussed in the law?
Whether consent is actually given is determined based on whether the person has expressed their consent, verbally or nonverbally. A person can never be considered to have given their consent if the act is preceded by an assault or a threat, if the person committing the act takes inappropriate advantage of someone's unconsciousness or fear, or other circumstances putting the victim in a compromised position, or if the person is dependent on the perpetrator. Based on the fairly new consent rules from 2018, the Supreme Court of Sweden recently ruled that a person simply remaining passive under an act (sexual abuse) is not considered to automatically have given consent to the act. Further, rape crimes no longer require harm, a threat or any other abuse of the victim. In addition, intent is no longer required, meaning that grossly negligent acts are covered by the law. The law requires that the perpetrator should have suspected that the person (i.e., the victim) has not expressed their consent due to the circumstances at hand.
5.3.5 Is self-defense or insanity a defense?

Yes. Under Swedish law, self-defense is a circumstance that excludes liability if the self-defense is proportionate to the threat or violence that is directed toward the victim.

In the case of a serious mental disorder, the offender cannot be sentenced to prison.

5.4 Witness status
5.4.1 What is a witness's duty to testify honestly and completely?
In accordance with Section 36, Chapter 1 of the Code of Judicial Procedure (1942:749) (Rättegångsbalken), all witnesses must testify if the prosecutor, the suspect or the defense deems it necessary. Witnesses must take the following witness oath: "I, N.N., promise and assure with my honor and conscience that I will tell the whole truth and not conceal, add or change." All witnesses must testify honestly or completely, and testifying against the witness's oath is criminalized as perjury under Section 15, Chapter 1 of the Swedish Penal Code (1962:700) (Brottsbalken).
5.4.2 Who may abstain from testifying in certain situations?

In accordance with Section 36, chapters 3 and 13 of the Code of Judicial Procedure (1942:749) (Rättegångsbalken), a witness will not be obligated to take the witness oath if any of the following conditions apply:

  • They are a party to the case, i.e., a co-defendant.
  • They are a close relative of the accused.
  • They are under 15 years of age.
  • They suffer from a mental disorder.
  • They are covered by a duty of confidentiality or an obstacle to confidentiality through, e.g., occupation.

If the witness belongs to any of the above categories, they may abstain from testifying in a domestic violence action. 

5.4.3 What potential "excuses" can a witness raise to refuse to testify in a domestic violence action?
Please refer to section 5.4.2.
5.4.4 What is the impact of domestic violence on witnesses who are children?
Please refer to section 5.4.5.
5.4.5 Can children be called upon to testify?

Yes. However, children are not obligated to take the witness oath in accordance with the above. Furthermore, the court has to try if it is appropriate for a child to testify considering all of the circumstances, if the child is under 15 years of age.

5.4.6 What is the effect of a child victim on the charges against the offender?
Please refer to section 5.4.5.
5.5 Penalties and sentencing; penalty enhancements
5.5.1 What are the penalties and sentencing laws for first-time domestic violence offenses?

Since Sweden does not have a separate category for domestic violence offenses, the penalties differ in accordance with the crime. For general assault in Chapter 3, Section 5 of the Swedish Criminal Code, the criminal penalty is a maximum of two years in prison. If the assault is deemed severe or especially severe, Chapter 3, Section 6 of the same act states that the penalty is a maximum of six years or 10 years respectively. A violation of women's integrity or a violation of an existing order for protection in accordance with Chapter 4 Section 4 a of the Swedish Criminal Code has a penalty of a maximum of six years in prison.

5.5.2 Are there criminal penalties?
Please refer to section 5.5.1.
5.5.3 What is the result of a violation of an existing order for protection?

Please refer to section 5.5.1.

5.5.4 What fines and other penalties are imposed besides incarceration and liberty restriction?

Please refer to section 5.5.1.

5.6 Post-release restrictions
5.6.1 Does the law notify the victim of the offender's release from custody?

Yes, if the victim decides they want to be informed of this in accordance with Section 13 b of the Preliminary Investigation Decree (1947:948) (Förundersökningskungörelse).

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