Introduction
Many acts of sexual harassment, violence and abuse include quid pro quo (this for that) elements: a teacher demands ‘sex for grades’, a civil servant offers a job candidate an internship in exchange for sex, a coach offers positions in a sports organisation in exchange for nudes. These are examples of ‘sextortion’. Sextortion occurs when a person with entrusted power abuses this power to obtain sexual favours in exchange for a service or a benefit that is within their power to grant or withhold. Thus, sextortion entails the abuse of power, and it is simultaneously an act of sexual violence and of corruption: sexual conduct involving a coerced quid pro quo and a corrupt form of conduct in which the currency is sex.1
Sextortion is clearly a form of corruption, but is often not acknowledged as such precisely because the currency of the transaction is sex instead of the more widely recognised money or material benefits (IAWJ, 2012; Feigenblatt, 2020; Eldén et al, 2020; Bjarnegård et al, 2022). Recognising the abuse of entrusted power is key to revealing the corruption component of sextortion. The absence of corruption means that people entrusted with positions of authority stand for equal treatment and distribute services fairly, according to pre-established criteria. When this entrusted power is instead abused for personal gain − be it of a sexual or monetary nature − it fits the definition of corruption.2 Just like with other forms of corruption, power imbalances and relative dependency are common facilitators in cases of sextortion (Eldén et al, 2020; Bjarnegård et al, 2022).
But sextortion is also clearly a form of sexual violence. Power imbalances and vulnerabilities are exploited and, although physical force may not be involved, psychological coercion is used to obtain sexual favours. With a sexual violence lens, however, the relative absence of force combined with the transactional aspect of sextortion − quid pro quo − can be misinterpreted to imply consent on the part of the victim. Thus, sextortion should be seen as both sexual violence and corruption. Its properties and ramifications cannot be properly understood without acknowledging the intersectional power
Sextortion as a concept has gained increasing attention in international research and policy discussions (Chêne, 2009; IAWJ, 2012; UNDP-Huairou Commission, 2012; Towns, 2015; Amnesty International, 2016; Transparency International, 2016; Merkle et al, 2017; UNDP-SIWI, 2017; IBA, 2019; Eldén et al, 2020; Feigenblatt, 2020; UNODC, 2020). In a Nordic context, however, the concept remains relatively unknown, and the phenomenon is still unexplored. This chapter is the first to examine documented empirical cases of sexual harassment, violence and abuse that include the abuse of entrusted power and quid pro quo aspects: that is, cases of sextortion in Sweden and Norway. The chapter shows how applying a framework of sextortion permits an analysis that sheds light on important corruption aspects in cases of sexual harassment, violence and abuse that may otherwise remain invisible. In particular, a sextortion lens necessitates a shift in focus from the question of the consent of the victim to the perpetrator’s abuse of entrusted power. To understand why sextortion is not reported, however, we must also analyse the vulnerability and stigmatisation involved.
Materials and method
Sextortion as a concept has hitherto not been used in the Nordic countries. This means that there are no public stories nor available previous research on sextortion as such. No one has been sentenced for committing ‘sextortion’ as an act of both sexual violence and corruption. Thus, there are no available empirical cases that explicitly refer to ‘sextortion’.
This does not mean, however, that sextortion as a phenomenon is absent in the Nordic context. Many of the #MeToo movement’s hashtags from 2017 and beyond gathered testimonies about sexual harassment, violence and abuse from different professions that included quid pro quo aspects. There were examples of testimonies about: judges and prosecutors demanding sex for judicial favours; police officers and senior physicians offering jobs to female colleagues in exchange for sex; patients sexually abused to obtain medical certificates; and university professors passing students’ exams in exchange for sex (#nödvärn, #medvilkenrätt, #akademiupproret, #vårdensomsvek, see also Lundgren et al, 2020). The sexual favours in these examples span a continuum of harassment and sexual violence − from a suggestion to sit in someone’s lap in exchange for a necessary signature to a request for sexual intercourse in exchange for a medical certificate. Sometimes the expectation could be implicit, and in other cases there was an implicit threat of violence if the victim did not comply with the suggested quid pro quo. Therefore, it is not the gravity of the sexual offence which is the common denominator
Moreover, the lack of recognition of sextortion does not mean that there are no legal cases in the Nordic countries regarding acts of sextortion. For the purposes of this chapter, we have chosen two judgments that describe acts of sextortion in detail, one from Norway and one from Sweden. Both the Norwegian and Swedish cases have attracted wide media attention, and the Norwegian case has also been mentioned in international reports as an example of sextortion (IBA, 2019; Feigenblatt, 2020). These legal cases, unlike the testimonies in the #MeToo movement’s hashtags, give detailed descriptions of both the acts of sextortion and of the contexts in which they took place. As such, they are used here as empirical cases of sextortion that allow for an in-depth analysis.
In both the cases analysed in this chapter, we use judgments from the District Courts (Tingsrätt in Swedish and Tingrett in Norwegian) as our primary source material.3 Both cases were brought to the relevant Court of Appeal (Hovrätt in Swedish and Lagmansrett in Norwegian), and in the Swedish case we also analyse the judgment from the Court of Appeal.4 In the Norwegian case, the appeal was withdrawn.
The judgments are public documents in both Sweden and Norway. The victims are protected by confidentiality in the judgments, while the perpetrators are named. In this text, we refer to the perpetrators’ positions, since these are key to our analysis of the abuse of power, but do not use their names or the name of their specific organisations.5
The judgments are texts written with the purpose of presenting the arguments for and against a person being found guilty of a crime. We approach them with a different purpose: to analyse them as stories about acts that we identify as sextortion, produced by Swedish and Norwegian institutions, and as their interpretations of the stories told (compare: Westerstrand, 2017; Wallin et al, 2021). Therefore, the reasonings put forward in the judgments offer clues for understanding how acts of sextortion are handled in a Nordic context.
The two empirical cases analysed in this chapter both concern male perpetrators and male victims. Even though reliable statistics on sextortion remain scarce (see, however, Transparency International, 2019a, 2019b), documented cases from all over the world paint a somewhat different picture. All documented international cases of sextortion include male perpetrators (see for example IAWJ, 2012; IBA, 2019; Eldén et al, 2020; Feigenblatt, 2020), and women and girls, regardless of context, are overrepresented as victims of sextortion, due to gender norms and gendered power relationships (Bjarnegård et al, 2022). However, in international reports about sextortion, examples of young men and boys being exposed to sextortion by other men
Next, we present the two empirical cases in more detail. We unpack the two cases, applying a framework of sextortion that we have developed in previous research (Eldén et al, 2020). We then turn to a discussion about what a framework of sextortion – that is, a focus on the abuse of entrusted power in exchange for sexual favours – adds to an analysis of sexual violence and how it relates to imaginaries of Nordic exceptionalism.
Two cases of sextortion
In Sweden, a former employee of the local division of a national organisation for LBGTQI rights was charged with rape and sexual molestation of four members of a sub-group of the organisation in spring 2021. This sub-group brought together persons who were newly arrived in Sweden: asylum seekers, undocumented immigrants or persons who had received a residence permit in the preceding two-year period. When committing the crimes analysed in this chapter, the employee was working as a migration advisor for the sub-group of the organisation.
In the District Court, the migration advisor was convicted of several cases of rape and sexual molestation perpetrated in 2018 and 2019, and sentenced to four years in prison. The migration advisor confessed that he had been involved in sexual acts with the victims, but claimed that they had consented to have sex with him. The District Court argued that the victims were in a ‘particularly vulnerable situation’, and the sexual acts constituted ‘undue exploitation’ of this situation, and therefore the question of consent was considered irrelevant. The Court found him guilty of five cases of rape and of sexual molestation and sentenced him to four years in prison (ST, 2021, p 2).
The Court of Appeal, however, dismissed the District Court’s reasoning. The Court of Appeal claimed that the victims were not in a ‘particularly vulnerable situation’ and therefore examined whether they had consented to the sexual acts or not. The migration advisor was acquitted in two of the five cases of rape, and the sentence was reduced to three years and four months in prison (SH, 2021, p 2).
The Norwegian case concerned a former cabinet minister of the Norwegian Government and former county governor. In 2018, he was
The victims of the former county governor’s abuse were three young men who had previously obtained asylum in Norway. One of them had been granted Norwegian citizenship in August 2009, another was granted citizenship in February 2015, and the third had had a temporary residence permit since 2004 (NTT, 2019, pp 2–3, 11, 20, 26).
The judgment from the District Court in the Norwegian case presents as central elements both the asymmetrical power relationship between the former county governor and his victims and the vulnerable situation of the victims. The former county governor was convicted of ‘exploiting’ the subordinate position and lack of resources of ‘particularly vulnerable’ young, unaccompanied former asylum seekers to obtain sexual favours (NTT, 2019, pp 2–3, 41).
Next, we first analyse the judgments from the District Courts in Sweden and Norway. The District Court’s findings in both these cases, we will argue, emphasise the abuse of both power and an entrusted position, and the quid pro quo aspects of the crimes. We then turn to the judgment from the Court of Appeal in the Swedish case, and examine the implications of focusing on consent instead of on the undue exploitation of the particularly vulnerable situation of the victims for understanding the crimes committed.
We start by analysing the two cases, focusing on the perpetrator and the impact of power and position on sextortion. Subsequently, we focus on the victim and the vulnerabilities that do not just facilitate sextortion, but also contribute to stigmatisation and silence.
Perpetrator and power: the abuse of an entrusted position
The abuse of entrusted power is central to the definition of sextortion (Eldén et al, 2020). A sextortion lens brings about a focus on how the perpetrator uses their entrusted position of power as a tool for obtaining personal sexual favours. From a corruption perspective, this implies that services are not distributed according to protocol such as need or merit. Instead, the perpetrator abuses the position of trust and responsibility that comes with their entrusted power, disregarding criteria and regulations that stipulate how services should be distributed, or permits given.
In the cases presented in this chapter, the perpetrators used their formal positions to explicitly or implicitly indicate that they had the formal power to withhold or offer services that were important to the victims. It was in their capacity as persons with entrusted power that the sexual acts were requested.
The Swedish case
Part of the role of migration advisor at the organisation for LGBTQI rights was to keep in contact with the members of the sub-group that brought together newly arrived persons in Sweden and give them psychosocial support and advice regarding health, including HIV and other sexually transmitted diseases (ST, 2021, p 8). The role of migration advisor also included providing information about migrants’ rights and obligations in Sweden and supporting them in their process of seeking asylum. This included informing the members of the sub-group about the migration process for LGBTQI persons, writing affidavits, and keeping in contact with the Swedish Migration Agency and the lawyers provided by the LBGTQI rights organisation (ST, 2021, p 8).
The victims in this case were at different stages of the asylum-seeking process. None of them had a residence permit in Sweden. The crimes that the migration advisor was prosecuted and sentenced for were all committed in his office at the organisation, under circumstances in which the victims were seeking his advice to help them in their migration process. The victims believed that the migration advisor in his position ‘had a decisive influence over their asylum-seeking process’ (ST, 2021, p 60). In the judgment, one of the victims is quoted as stating that: ‘[He] thought that [the accused] could speak for him at the Swedish Migration Agency so that the Swedish Migration Agency could reopen his case and re-examine his application for asylum which had previously been rejected’ (ST, 2021, p 29).
Another victim is quoted as stating that he believed that it was in the migration advisor’s power to ‘call the police’ and ‘have him deported’ (ST, 2021, p 18). This was not necessarily the case: the migration advisor had a position in a civil society organisation and had presumably no influence over any public authority decision. Part of his role was to write affidavits to the Swedish Migration Agency, a task, however, that other employees at the LBGTQI rights organisation could also have done (ST, 2021, p 43).
Thus, all victims believed that the migration advisor had extensive power over their asylum cases, and more power than he actually had. They also expressed great fear of the migration advisor, and were afraid of the consequences if they did not comply with what he required them to do. Given the circumstances, the District Court argued that the victims had good reason to believe so, and the fact that his actual powers were more limited was not considered relevant when evaluating the migration advisor’s responsibility for his acts.
When [the accused] was on his knees he [the victim] thought that [the accused] would never help him if he refused to have sex with [the accused]. He then decided that he would agree to have sex if [the accused] demanded this because he needed help from [the accused] and thought that he needed to give something in order to receive help. (ST, 2021, p 30)
[The accused] had taken him by surprise with sexual advances and there and then he felt that he could not deny [the accused] sex because if he did, he would risk not getting help and/or that [the accused] would call the police and tell them that he was an undocumented immigrant. (ST, 2021, p 24)
He [the victim] told [the witness] what had happened when he came out [of the office], and [the witness] then said that it was common that [the accused] did that and that ‘he is doing this to everyone, not just you, I am sure he is doing this to everyone’. (ST, 2021, p 29)
Thus, the migration advisor gave the victims the impression that he could determine the results of their asylum processes. Physical force was unnecessary; the victims were terrified, as they believed their future was in his hands. He exploited their fear and abused his position of power by implying that his help was conditional on sexual favours.
According to the District Court, it has been proved that the plaintiffs had little or no possibility to preserve their sexual integrity because they were lacking knowledge of Swedish, did not have residence permits in Sweden, and believed that [the accused] had a decisive influence over their asylum-seeking process, and [the accused] has abused both his position as a migration advisor and the fears of the plaintiffs. (ST, 2021, p 60)
In the Norwegian case, the former county governor was charged with and convicted of abuse of a position of power, and abuse of a relationship of dependency or trust to obtain sexual favours from three victims. His position as county governor was a key element in the prosecutor’s argument and in the ensuing judgment (NTT, 2019, p 36).
In his capacity [as county governor], [the accused] sought out [the victim] at institutions under the county governor’s supervision and could bring [the victim] on trips to inter alia his cottage and his home. (NTT, 2019, p 2)
His position as county governor also allowed him to make his victims believe he had the power to grant them jobs, housing, and even residence permits. Regarding one of the accusations, the District Court argued that: ‘As a former county governor and central politician, he deceived [the victim] into believing that, through his position, he could help [the victim] with housing as well as obtaining a permanent residence permit in Norway’ (NTT, 2019, p 3).
One of the victims stated in court that the former county governor had said that ‘he could help him with everything, and that he did not have to worry about anything in Norway’ (NTT, 2019, p 17). He had also said that ‘he knew a number of important people including the King, the Chief of Police in Oslo and [the County], and people at the UDI [Norwegian Directorate of Immigration] that were responsible for his asylum case’ (NTT, 2019, p 17).
Similarly to the Swedish case, the former county governor exploited his position of power and the victims’ vulnerable position by making his victims believe he had more power than he really had. In the Norwegian case, the District Court emphasised this. In the judgment, the Court pointed out that the former county governor made his victims believe he had the power to decide or influence whether they got to stay in the country or not. The Court then argued that the fact that he did not actually have that power and authority: ‘has no significance in this context as long as the victim had been convinced that this was the situation. The defendant understood that the victim believed that he had the power to, among other things, influence [the victim’s] residence permit, and used this consciously to obtain sexual intercourse’ (NTT, 2019, p 18).
One of the victims received Norwegian citizenship in a ceremony led by the former county governor in 2009: ‘[The accused] had delivered Norwegian citizenship to [the victim] in a ceremonious capacity and deceived
The case of this victim is particularly illustrative. The former county governor first met the victim thanks to the access he had to the institution where the victim was placed, then by virtue of his position as county governor at a ceremony where the victim was awarded his citizenship. When they met again some years later, he used his position of power to exploit the victim sexually. The judgment states: ‘The accused has deliberately exploited his position to obtain sexual intercourse. He knew that the offended party thought that he, as the county governor, was able to revoke his citizenship, and he knew that this was the reason he obtained sexual intercourse’ (NTT, 2019, p 34).
The nature of the sexual exploitation varied and only one of the victims referred to physical violence (NTT, 2019, p 13). The former county governor mainly used psychological coercion, taking advantage of the vulnerable position of the victims, which was referred to by the District Court as ‘psychological influence’ that he used to ‘deceive’ the three victims (NTT, 2019, p 18).
In connection with his sexual advances, the former county governor would always ask about the residency situation of his victims and mention that he had powerful friends and acquaintances. The District Court concluded that this ‘conduct and procedure’ was used in relation to all three victims (NTT, 2019, pp 23, 31). The pattern of this conduct and procedure was systematic, which according to the Court added to the ‘cynical and serious’ nature of the exploitation (NTT, 2019, p 36). The District Court concluded: ‘The defendant’s actions were characterised by building trust with the complainant through showing care and interest in their challenging situation, to then exploit that trust for his own sexual gratification’ (NTT, 2019, p 36).
Victims and vulnerability: quid pro quo
Previous research shows that the combination of fear and shame that is often experienced by victims of sextortion means that most cases of sextortion pass unreported and remain unknown (Eldén et al, 2020, p 11). In the cases presented in this chapter, the victims had ‘fear of deportation’ (NTT, 2019, p 40), fear that if they did not comply, they would not receive the help they needed, and ‘felt strong concern about reporting’ (ST, 2021, p 38). Also, they expressed strong ‘feelings of shame’ (NTT, 2019, p 23; ST, 2021, pp 38, 79).
Fear and shame are key aspects of all forms of sexual harassment, violence and abuse. In cases of sextortion, however, the quid pro quo aspect adds to the fear and shame, as it may be used to frame the sexual acts as consensual. This has the effect of portraying the victim as ‘complicit’ and thus legitimises the sexual favours obtained (Bjarnegård et al, 2022). This, in turn, can add
The Swedish case
In its internal policy, the national organisation for LBGTQI rights acknowledged that many of the members of the sub-group for newly arrived members were in a particularly vulnerable situation. The people working with the sub-group of the organisation were not all employees; many were volunteers. The volunteers had to sign an undertaking where they ‘promised not to initiate sexual relations with the members, since [the organisation] considered that there was a pressing risk of undue exploitation due to the desperate situation that most of the members were in’ (ST, 2021, p 23). At the time when the crimes were committed, this undertaking did not apply to employees of the organisation – a fact used by the defence in the Court of Appeal (SH, 2021, p 4). However, this undertaking clearly illustrates an awareness on the part of the organisation of the potentially vulnerable situation of the members of this sub-group.
The District Court made a point of stating that the members of the sub-group for newly arrived members were not vulnerable per se: that it could not be argued that ‘the group “migrants”, “refugees”, and “asylum seekers” are by default in a particularly vulnerable situation and therefore can never be said to consent to sexual acts’ (ST, 2021, p 11). In the case of the four victims in this case, however, the District Court argues that their situation when the migration advisor raped and sexually molested them was just that: a particularly vulnerable situation. The court refers to their situation as a whole, which they argue should be the basis of the assessment (ST, 2021, p 57): ‘[They] lacked knowledge of Swedish, they did not have residence permits in Sweden, they believed that [the accused] had a decisive influence over their asylum processes, and [the accused] abused his position as a migration advisor and exploited the fear of the complainants.’ (ST, 2021, p 60).
Apart from the general knowledge and insights that [the accused] had about the vulnerability of [the victim], the District Court’s assessment is that [the accused] more or less made a habit of having sex with [the
victim] when he sought his help and advice. Therefore, the District Court’s assessment is that [the accused] knew that [the victim] did not participate in these acts voluntarily. (ST, 2021, p 58)
[The victim] was feeling very bad, had difficulty talking about the abuse. After the first visit, [the victim] had not reported it to the police and was very concerned about reporting. He [the psychotherapist] recalls [the victim] as frightened, depressed and that he had lost hope. ... He [the psychotherapist] remembers that [the victim] had a strong feeling of disappointment ... [the victim] had difficulties sharing his story and he felt shame. (ST, 2021, p 38)
Witnesses and the lawyers testified that the victims felt ‘fear of being assaulted again in similar situations’ and had ‘feelings of shame due to the crime’ (ST, 2021, p 79), and felt ‘shame and anxiety’ when talking about what had happened (ST, 2021, p 19). The fear that was already strong before the sexual abuse seems to have increased in the wake of these acts.
The Norwegian case
In the Norwegian case, the vulnerable situation of the victims is key in the reasoning presented by the District Court. In the case of one of the victims, the Court points out that the former county governor ‘took advantage of [the victim]’s position as a particularly vulnerable young, unaccompanied asylum seeker who lacked resources’ for his ‘own sexual purposes’ (NTT, 2019, p 3).
[The victim] had no permanent job, had inadequate living conditions, and no permanent residence permit in Norway. ... In this situation, he would do anything to obtain a permanent residence and a dignified life in Norway, so much so that he was brought into an abusive situation with an older man who exploited the deception of the complainant: that the accused inter alia could facilitate residence in the country. (NTT, 2019, pp 25–6)
The accused has exploited and deceived persons who lacked resources and who were in a vulnerable situation into engaging in sexual intercourse by making them believe that he had inter alia the power and authority to influence their right to residency in Norway. There was a significant power relationship between the accused and the victims, and there was nothing in their relationship that can explain the sexual intercourse independently of the power relationship and the deception on the part of the accused. (NTT, 2019, p 5)
it is not relevant in this case whether the victim did or did not resist engaging in sexual intercourse, or whether violence, coercion or the like was used. There is no real consent when the element of exploitation in the case of abuse of a vulnerable situation is satisfied. (NTT, 2019, p 19)
The victim has told [the psychologist] about the exploitation and the background for why he let it happen, and why he did not manage to put a stop to it. He has shared the feeling of being in debt, of having ‘promised himself’ to a man of high status who could offer him benefits, but the status could also be used against him if he did not comply, and he was bitter about not putting a stop to it before. (NTT, 2019, p 16)
Thus, it is clearly stated in the judgment that the former county governor acted knowingly and intentionally when creating a ‘fear of deportation’ to obtain sexual favours (NTT, 2019, p 40). The victims also expressed fear that their community would find out what had happened, and all the victims had feelings of shame and guilt about the sexual abuse.
Consent or abuse of power?
In both the Swedish and Norwegian cases, the perpetrators abused their position of entrusted power to obtain sex from their victims. In both cases, sexual acts were obtained by making promises of benefits or making the
As previously discussed, the District Courts in both Sweden and Norway recognise many of the aspects embedded in sextortion. The judgments from both District Courts take into consideration the abuse of an entrusted position and power, and illustrate how the combination of a power imbalance, dependency, and shame, fear and stigma for the victims enable improper exploitation of their particularly vulnerable situation. This was done by utilising the available legal frameworks for rape and sexual molestation in the Swedish case; and abuse of position, dependency and trust in the Norwegian case.
Does this mean that, in a Nordic context, there are already sufficient tools available to recognise the specificities of sextortion? Is it possible to avoid impunity for perpetrators in cases that combine corruption (abuse of power and quid pro quo) and sexual violence? In order to answer these questions, we now turn to the judgment from the Swedish Court of Appeal in the Swedish case, and then connect our discussion to a feminist theoretical discussion that problematises consent.
Shifting responsibility from perpetrator to victims
Even if we consider the fear of the complainants and how they perceived the risks if they did not agree to be involved in the sexual acts, there is insufficient evidence to support the conclusion that the circumstances implied that any of them had very limited possibilities to protect themselves from exploitation. (SH, 2021, p 8)
Importantly, the new Swedish sexual offences legislation which focuses on consent (Govt Bill, 2017/18) stipulates specific conditions under which a person is not considered capable of consenting to sex. These conditions include fear or coercion through gross abuse of their position of dependence (Gunnarsson, 2020, pp 13f). In such cases, a sexual act will be considered rape and not consensual, as it is argued in the District Court’s conclusions in the Swedish case. The Court of Appeal, however, concluded that the victims had not been in a particularly vulnerable situation and the migration advisor should not be sentenced for improper exploitation of a person in such a situation. Since the Court of Appeal could not rule out that the victims were voluntarily involved in the sexual acts, the Court instead examined whether or not they consented to the sexual acts (SH, 2021, p 8).
In this case, the Swedish Court of Appeal did not consider the context and the situation of the victims in relation to the perpetrator, but instead focused on the acts of the victims in relation to potential consent. As a consequence, the perpetrator’s liability for abusing his position of power disappears from the picture.
The Court of Appeal found that on three of the indictments, the migration advisor was still guilty of rape, arguing that it was clear that the victims did not consent to have sex. In coming to this conclusion, the Court of Appeal focused on the details of the situation: the unexpectedness and suddenness that was proposed to have made it difficult for the victims to refuse, and their passiveness during the sexual act (SH, 2021, pp 10f, 12, 16).
The fact that he unbuttoned his trousers and got to his feet to let [the accused] undress him should be considered voluntary participation to some extent. Moreover, it appears from [the victim’s] own account that he chose to accept sexual acts with [the accused] for the purpose of receiving his help in contacts with the Migration Agency ... The
Court of Appeal finds credible [the victim’s] declaration that his motive for participating was to receive help from [the accused] and that the incident made him feel very bad afterwards. (SH, 2021, p 18) From his account, it has become clear that his acts were a result of his decision to accept being involved in sexual acts with [the accused]. Under these circumstances, the Court of Appeal finds that according to the law nothing else is shown than that the acts of [the victim] should be regarded as consensual. (SH, 2021, p 14)
In the judgment from the Court of Appeal, the abuse of power is completely absent from the Court’s reasoning. As the Court of Appeal did not consider the victims to be in a ‘particularly vulnerable situation’, it embarked on a discussion of potential consent, and how the perpetrator might have interpreted signs that potentially communicated consent. The context, situation, and position of dependence of the victims was erased, and through this, the power relationship between the perpetrator and the victim was made irrelevant. Instead, the Court’s reasoning turns to the details in the specific situations, such as the suddenness of the situation, if the victims had time to leave the room, if they were ‘helpful’ in unbuttoning their trousers, and so on. The focus of the reasoning in judgment is on the acts of the victims, not the criminal liability of the perpetrator.
‘Coerced consent’
The Swedish sexual offences legislation does not stipulate what an expression of consent entails; this is up to the Court to determine (Wallin et al, 2021). The District Court in the Swedish case decided to take into consideration the situation as a whole – including the power imbalance and relationship of dependence – while the Court of Appeal took into account only the details in the situation and what could be assumed about the victims’ intentions. Although the Court of Appeal in the Swedish case acknowledges that the victims did not want to have sex with the perpetrator, that they were physically uncomfortable during the act, and were badly affected psychologically afterwards, the Court argued that they still could be considered to have consented to the sexual acts because they were depending on help from the perpetrator.
A broad body of literature problematises the concept of ‘free consent’, arguing that consent is always ‘saturated with normative ideas and power relations’ (Linander et al, 2021, p 112). Many scholars argue that laws which focus on consent, such as the new Swedish sexual offences legislation, do not necessarily address these complexities, and ‘there is a need to consider the role of power and gendered discourses in shaping consent’ (Linander et al, 2021, p 110).
When defining sexual violence, the Civil Society Declaration on Sexual Violence states that one of the factors that is relevant to take into consideration when determining ‘whether an act of a sexual nature was committed without genuine, voluntary, specific and ongoing consent’ is the existence of an unequal power relationship, including the perpetrator being ‘a person in a position of authority’ or the victim ‘having any type of dependency on the perpetrator’ (The Hague Principles on Sexual Violence, 2020, p 11). The International Association of Women Judges (IAWJ) argues that there are situations ‘in which the disparity in power is so great that the “consent” is, in fact, coerced and not true or meaningful consent’ (IAWJ, 2012, p 15). IAWJ therefore uses the term ‘coerced consent’ in their definition of sextortion to capture, for example, psychological coercion, threats, or abuse of authority ‘that would invalidate a sextortion victim’s apparent “consent” to the sexual conduct’ (IAWJ, 2012, p 15). Similarly, Gitlin argues that ‘legal consent cannot exist in contexts where the power imbalances are extreme’, and that therefore, ‘all cases involving a sexual quid pro quo should be deemed per se coercive’ (Gitlin, 2016).
In the cases of sextortion discussed in this chapter, the quid pro quo took place in the context of an extreme power imbalance in which the victims were in a position of dependence, in need of the favours or services of the perpetrator (for example, help with asylum processes, jobs, and/or residence permits). In these cases, the sexual acts are a condition for access to such favours or services, and could hence be deemed ‘coerced consent’.
Liability for abuse of power
The Court of Appeal in the Swedish case could be said to have used a ‘reverse sextortion logic’: because the victims needed the help of the perpetrator, they effectively consented to the sexual acts. The Court of Appeal thus portrays the victims as ‘complicit’ which legitimises the sexual acts − a logic that, as
Our argument is that it is precisely the extreme power imbalance, together with the victims’ need for the benefit or service offered as a quid pro quo, that reinforces a relationship of dependence between victim and perpetrator, and therefore invalidates any meaningful form of consent.
This insistence on focusing on liability for the abuse of power is the main contribution of an analytical framework of sextortion. Liability in cases of sextortion always lies with the actor who abuses their entrusted power for personal gain.
As illustrated, the argument in the judgment from the Swedish Court of Appeal differed strikingly from that of the District Courts in both the Swedish and Norwegian cases, which presented reasoning that focused on the abuse of power, abuse of an entrusted position, and hence made it possible to hold the perpetrators to account for improper exploitation of the particularly vulnerable situation of the victims. The Court of Appeal instead focused on the acts of the victims, and whether these might have been interpreted by the perpetrator as expressions of consent.
Therefore, there are evidently ways to prosecute sextortion – that is, violence/harassment that includes the abuse of power and quid pro quo elements – within the framework of sexual offences legislation without losing sight of power imbalances and improper exploitation of a type of dependency. Still, there are obvious risks when applying a logic of consent, for instance by redirecting focus from the liability of the perpetrator for their abuse of power to the actions and intentions of the victims, even using their position of dependence as an argument for consent.
Nordic self-image and sextortion
The migration advisor and the former county governor sexually exploited their victims for a long period of time before action was taken against them. To varying degrees, people around them knew of or suspected the sexual abuse while they continued to abuse the victims. Their formal positions gave them access to the victims. We can only speculate on whether or not acknowledging the abuse of power – instead of focusing on the gravity of the sexual offence, or evidence of the sexual offences committed – prevented these cases from being brought to court sooner.
But did the perpetrators’ positions as an employee of a civil society organisation working with discrimination and human rights (the organisation for LBGTQI rights) and as a representative appointed by the Norwegian government (county governor), along with their well-known engagement with the plight of immigrants, also prevent the disclosure of their abuse? Did the Swedish and Norwegian societies’ views and expectations of
To try to answer these questions and further develop our arguments in this chapter, we will conclude by turning to a critical strand of scholarly work that challenges a Nordic self-image characterised by ‘exceptionalism’. This strand examines underlying ‘notions of the Nordic countries as global “good citizens”, peace-loving, conflict-resolution orientated and “rational”’ (Loftsdóttir and Jensen, 2012, p 2, making references to DeLong, 2009, pp 368–9 and Browning, 2007, pp 27–8), and as progressive ‘human rights champions’ (McEachrane, 2014).
Corruption plays an important, but often implicit, part in imaginaries of Nordic exceptionalism. From an international perspective, social trust is very high in the Nordic countries and has been referred to as ‘the Nordic gold’ because it tends to extend to trust in public authorities and to low levels of corruption (Andreasson, 2017). The Nordic countries consistently end up at the top of international rankings of non-corrupt countries (see, for example, Bergh et al, 2016). Many of these rankings, however, use a narrow conceptualisation of corruption, and critical voices have been raised claiming that the self-image of Nordic countries as non-corrupt can be dangerous and lead to complacency (see, for example, Forsberg, 2019; Wahlberg, 2021). A recent report by Transparency International found that when broader conceptualisations of corruption are used, the picture painted is somewhat different. While only one per cent of Swedes have paid bribes, 20 per cent have used personal connections to gain different types of benefits (Transparency International, 2021). Thus, if the abuse of entrusted power for private gain is at the centre of the analysis, this Nordic self-image may, at least in part, be questioned. This image of exceptionalism is grounded primarily in the idea that the country is a ‘moral superpower’ in a number of different areas (Jansson, 2018, p 86; see also Loftsdóttir and Jensen, 2012, p 2), which ‘makes it harder to deal with various problems that directly impinge upon democracy’ such as corruption (Jansson, 2018, p 90; see also Bergh et al, 2016).
Gender equality also plays a very specific role in the Nordic self-image of ‘exceptionalism’. Recent research on nation-branding in the Nordic countries shows that gender equality is ‘essential to the self-understandings of the Nordic countries, serving as a source of pride and national identity’ (Larsen et al, 2021, p 2; see also de los Reyes and Mulinari, 2005), and is also referred to as ‘gender exceptionalism’ (Larsen et al, 2021, p 2). The idea of gender equality as a Nordic or national trait has also become central in racist hierarchisations through being ‘“implicated in a new inequality”: the hierarchical categorisation of “Swedes” and “immigrants”’ (Towns, 2002, p 157).
Gendered violence is central in imaginaries that connect gender equality to national pride or ideas of exceptionalism. In both the Swedish and
A Nordic self-image characterised by ideas of exceptionalism, centring gender equality and protection against sexual violence, is thus clearly implicated in processes of othering. Violence – specifically sexual violence – is attributed to ‘others’ that are excluded from national belonging. This, in turn, makes it difficult to acknowledge, let alone work against, violence. It prevents an understanding of (sexual) violence as an extensive and fundamental problem that permeates all spheres of society in the Nordic countries, and makes it difficult to acknowledge underlying cultural patterns and social and legal structures that legitimise rather than protect from or prevent sexual violence.
Conclusion
In this chapter, we have shown how the Court of Appeal in the Swedish case did not recognise that the victims had been in a ‘particularly vulnerable situation’, and therefore discussed the extent to which the victims could be said to have consented to the sexual acts. Even though the Court acknowledged that the victims did not wish to have sex with the perpetrator, in the judgment it was argued that the victims had still ‘consented’ since they needed the help of the perpetrator in their individual migration cases. When understood in terms of a logic of consent, and centring the actions and intentions of the victims, the Court of Appeal in the Swedish case lost sight of the context, power imbalance and dependency characterising the situations.
We argue that an analytical framework of sextortion prevents a shift in focus from the actions of the perpetrator to the actions of the victim. By recognising the corruption aspects of the sexual violence in these cases (the abuse of power and quid pro quo elements), liability is instead placed on the perpetrator: the one who abuses a position of power. Applying a framework of sextortion, the question of consent becomes irrelevant, since the focus is on the abuse of the power of the perpetrator.
In the two cases of sextortion discussed in this chapter, the specific conditions of the migration process, and the vulnerability and fear
In addition, we argue that a Nordic self-image characterised by exceptionalism regarding both sexual violence and corruption makes it harder to acknowledge abuse of power within legal structures that are presumably designed to protect victims and prosecute perpetrators of sexual violence.
Moreover, the perpetrators in the two cases discussed in this chapter held positions that not only entailed entrusted power in general, but also made them ‘good Nordic men’: positions from which they worked against discrimination, for human rights, and engaged with the plight of immigrants belonging to a particularly vulnerable group. Through their formal and informal positions in these Nordic societies characterised by a self-image that actively ‘others’ sexual violence, they became unlikely as perpetrators (compare: Jeffner, 1997; Livholts, 2007). Thus, the Nordic self-image of exceptionalism in this sense protects perpetrators that operate from the centre of national belonging, contributing to the invisibility of and impunity for their crimes.
To sum up, we argue that the broader self-image of Nordic exceptionalism – including ideas of gender equality, protection from sexual violence, and an anti-corruption culture – helps to obscure rather than expose conditions that enable the abuse of power, and hence contributes to impunity for perpetrators. Our suggested framework of sextortion has great implications for the rather forced reasoning by the Court of Appeal in the Swedish case that it was in the victims’ ‘self-interest’ to have sex with the perpetrator since they needed his help. With this ‘reverse sextortion logic’, the victims’ position of dependence was used to argue that they effectively ‘consented’ to the sexual acts and that these acts could therefore not be considered rape. A framework of sextortion instead insists on centring abuse of power and thus the responsibility of the perpetrator for abusing their position of power – not the potential consent of victims of exploitation.
Notes
The term sextortion was coined by the International Association for Women Judges (IAWJ) in 2008 (IAWJ, 2012). The conceptualisation of sextortion that we build on in this chapter was developed in the report Sextortion: Corruption and Gender Based Violence (Eldén et al, 2020). We want to acknowledge the important contributions of our report’s co-author Sofia Jonsson in this early work on sextortion.
See, for example, https://www.transparency.org/en/what-is-corruption.
The translations of quotes from the judgments from Swedish and Norwegian to English are ours.
One of the victims in the Swedish case brought the case to the Supreme Court (Högsta Domstolen), but the appeal was denied.
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