Dear Mr. Michael Moore,
I read your open letter to the Swedish Government. I am afraid they will probably not answer. They’re a bit busy at the moment: The aftermath of the financial crisis requires attention. And there’s also the thing with the first suicide bomber in our country, which has caused quite some commotion. But don’t you worry, it is very unlikely that we will use this single act of terror as an excuse to invade a country. Or maybe a very small one, but that it is unlikely.
Anyway, since the Government will not answer your letter I thought maybe I could send you a short note,from the perspective of a Swedish lawyer on how the Swedish legal system works and how it doesn’t work . It seems there is some confusion here, probably as a result of differences between our systems.
1. I am afraid that you sent the letter to wrong place. In Sweden we keep our judicial system separated from the Government. The courts and the prosecutors carry out their work without intervention of the Swedish government. In fact, such intervention is forbidden.
We think this is a good idea, but maybe we should think more outside the box here. It is just that states that allow for the Government to decide if an accused person should be held in custody or not in our country would be considered as dictatorships. Like the Soviet Union.
2: In some countries the Government runs a little judicial system of its own, on the side. I know that some countries even run little torture camps, so to say, outside the borders of the country where it is said that normal rules don’t apply. This way one could escape the tiresome requirements of due process, for instance.
The Swedish state has not taken this route, even if there are several nice islands close that could be used for this purpose. Ösel, for instance. Or Åland. But so far the Swedish government has refrained from trying to cheat its way out of the requirements of the rule of law in such a way.
I am sure this seems very backwards and inefficient to you. Anyway, this all means that the Government has nothing to do with the the processes of the legal system in individual cases.
3.Statistics is a difficult thing. Not all people know how to read statistics. When you quote statistics on the ratio between reported rape and legal proceedings, you seem to be getting it quite wrong, I am afraid. A reported crime is not the same as a crime and it is something completely different from a provable crime.
Many reports of rape has its background in events that have happened behind the closed doors of a home. In these cases it can often be difficult to prove what has happened. And when sufficient evidence cannot be produced we have this peculiar principle in Swedish law called the presumption of innocence. You might have heard of it.
It means that if the prosecutor cannot prove her case the law will consider the accused person as innocent. The downside of this is that possibly guilty men and women will go free. Yes, we would even let ”thousands of Swedish rapists roam free” if needed to uphold a Rechtsstaat.
4. Maybe there’s another difference here. In Sweden, we try not to let statistics influence individual cases of criminal investigations or proceedings. In your letter you quote (misinterpreted) statistics and seem to hold that this has relevance for whether Mr. Assange should be arrested or not. (So far the only question on the table has been whether to arrest Mr. Assange.)
In the view of our archaic legal system it is not considered relevant whether Mr. Assange or someone else involved in the case, or if the allegations as such, fall into any particular statistical category. Each case should be dealt with individually.
5. A little digression into the Swedish language. In Sweden we have a saying that has recently become popular. We talk about ”foliehattar”. A foliehatt is a hat made by tin foil. It is used by people who wants to protect the brain from mind reading and other intrusions, for instance by the Government. I am not sure, but I think that the hat may also be used to block out signals from a transmitter that has been hidden in someone’s teeth.
When a person is called a foliehatt it’s often because she’s a conspiracy theorist. The Assange case is a wet dream for the conspiracy theorist. Some talk about ”dark forces”, others about ”honey traps”, and you pitch in a little story about ”a conservative MP” that supposedly influenced the prosecutors in Sweden to change their position.
People forming these arguments we call foliehattar in Swedish. It is difficult to take such arguments seriously. Some of these arguments may turn out to be, in reality, true or somewhat true. But it seems unlikely. It seems unlikely that an advanced CIA/Mossad/SÄPO trap would use these kinds of accusations. They crimes that Mr. Assange has been accused of are not the kind of activities that would put you in jail for a very long time. It seems unlikely also for a lot of other reasons. Even the wikileaks people in Sweden seem to think so. But what do I know, maybe it’s all part of the plan.
6. Your argument seem to be resting on an idea of fairness different from that of our little system. Here’s a quote. ”But that really wouldn’t be like you would it, to go all the way to another country to pursue a suspect for sexual assault when you can’t even bring yourselves to make it down to the street to your own courthouse to go after the scores of reported rapists in your country.” You seem here to be saying, in a nuanced manner, that since many rapists are allowed to walk free in Sweden, without even being brought to justice, the accusations of Mr. Assange shouldn’t be investigated. I don’t agree with the premise of the argument.
Outside my window right now I see a father with a trolley, a woman holding a bag full of Christmas presents and two people trying wipe snow off their cars. Now, I know you can’t tell just from looking – but I would be quite surprised if all these people turned out to rapists. But let’s assume they are rapists, rapists that are being allowed to push trolleys, buy Christmas presents and drive cars, without the Government even trying to arrest them. Even if it was so, I can’t understand why not another accusation should be sufficiently investigated. Two wrongs don’t make a right.
7. Finally, to clear out some misunderstandings that have flourished in the discussion: Mr. Assange has not been charged with anything by anyone as of yet (and maybe he never will – the investigation is still ongoing); it is not criminal to have sex without a condom in Sweden; it is criminal to have sex without a condom if the person you’re having sex with wants you to use a condom; it can be criminal to have sex with a sleeping person; whether the accused person is a saint, or a horrible person, has no influence on the investigation of a crime; Sweden’s rape law is as far as I understand it not that different from most other Western countries.
Futhermore: Mr. Assange has the right to be presumed innocent, and a right to privacy; the women that has accused Mr. Assange of a crime should be considered as trustworthy as long as no compelling evidence says otherwise, and these women also has a right to privacy. Here I think that we have already seen a problem with the Swedish legal system, namely that it does not protect privacy enough in matters such as these. This holds for both Mr Assange, as well as for the women that made the allegations. We should also talk more about the relationship between the protection of privacy and freedom of speech. But these points have been completely lost in some strange war where people feel they have to take sides in an ongoing investigation regarding something they cannot know anything about. Quite depressing, really. Personally I sympathize strongly with wikileaks and the struggle for transparency. But that is not what the Swedish legal system is occupied with at the moment.
Allright, that was just some thoughts from Stockholm. I am sorry for mistreating the English language like this. I have been trying to make knäck at the same time as I wrote this. Have you tried it? I think you’d like it. Knäck is normally very tasty. This batch turned out a bit burned, though. Those damned dark forces.
With best regards from a snowy Stockholm
[Update: A preliminary draft of this post was published for a short while here. A hacker attack, I'm sure.]