Accessing Rights and Mitigating Revictimization: The Role of the Victim’s Legal Counsel in the Swedish Criminal Justice System

Abstract

Rape victims often face secondary victimization by the criminal justice system, prompting their advocates to promote a variety of procedural changes, including the provision of an independent legal counsel for victims. Sweden implemented a legal counsel for victims of sexual assault and rape in the late 1980s, yet research about their role remains limited. This article draws upon interviews with victim-lawyers in Sweden and suggests that having access to an independent legal counsel can mitigate the risks for secondary victimization by empowering victims to access their rights and providing emotional support and connectedness in the criminal justice system.

Keywords

rape victims secondary victimization victim-lawyers independent legal counsel

Introduction

Victims of sexual assault and rape can experience secondary victimization when they disclose their assaults to institutions or individuals (Campbell & Raja, 1999; see also Williams, 1984). Also called “the second rape” (Madigan & Gamble, 1991), secondary assault (Williams & Holmes, 1981), or revictimization (Maier, 2008), the negative experience of reporting can deter victims from taking action and holding their perpetrators accountable. Herman (2005) argues that the legal process is in fact “diametrically opposed” to the well-being of the victim, and “if one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law” (p. 574; see also Antonsdóttir, 2018; Campbell, 2006; Campbell & Raja, 1999; Estrich, 1987; Frohmann, 1998; Konradi, 1996a; Martin, 2005; Smart, 1989).

Martin and Powell (1994) call for a focus on the “politics of rape victims’ needs” in seeking criminal justice solutions to rape that minimize secondary victimization and help victims find justice. In this article, I answer that call by examining a victim-centered practice in the Swedish criminal justice system. In Sweden, victims of sexual violence have the right to an independent legal counsel paid for by the state (Tham et al., 2011). Called målsägandebiträde, the victim’s lawyer serves multiple functions in the Swedish judicial system, which includes protecting the interests of the victim during the investigation and trial (Kirchengast, 2013). In this article, I report on in-depth interviews with målsägandebiträde and other professionals who work with rape victims conducted over a 15-month period. I ask the following questions: How do the lawyers working as målsägandebiträde shield their clients from secondary victimization? How does their role contribute to a more victim-centered approach to processing rape cases in the Swedish criminal justice system?

Literature Review

Secondary victimization refers to the negative reactions victims receive when they disclose a sexual assault or rape, or the primary victimization they have been subjected to (Orth, 2002). In the sexual violence literature, it often refers to the reception of sexual assault victims within the criminal justice system, and the unresponsive people and procedures they encounter (Campbell, 2006; Koss, 2000; Madigan & Gamble, 1991; Maier, 2008; Martin, 2005; Martin & Powell, 1994). From police interrogations to the criminal trial, victims are routinely doubted and disempowered (Antonsdóttir, 2018; Jordan, 2011; McGlynn & Westmarland, 2019; Stanko & Hohl, 2018). There has been improvement since the 1970s as feminists worldwide have fought for legal and procedural changes to rape investigations and trials (Bevacqua, 2000; Elman, 1996; Horvath & Brown, 2013). Despite the attention to sexual violence in the criminal justice system, problems such as low reporting, high attrition, unresponsiveness of criminal justice professionals, and lack of specialization persist (Jehle, 2012; Jordan, 2011; Stanko & Hohl, 2018).

Martin (2005) finds in her study of criminal justice professionals in the United States that the very nature of their professional responsibilities can limit the supportive emotional response that would mitigate secondary trauma. There are professionals within the criminal justice system who work to advance the case against the perpetrator and work on the side of the victim, including prosecutors and rape victim advocates. But these roles are either constrained in their ability to provide support to the victim or limited in their procedural power, respectively (Braun, 2014). For example, even though a prosecutor is there to present the state’s case regarding the crime against the victim to the court, they are not there to represent the victim. Victims, though, can mistake the prosecutor as their personal lawyer and express dismay when they realize the prosecutor is not concerned with justice for them, but justice for the state (Konradi, 1996b; Pokorak, 2007). Raitt (2010a) notes that prosecutors’ “competing responsibilities” to both the victims’ case and a commitment to “legal neutrality” can leave victims feeling abandoned and disempowered (p. 272).

Extensive research, particularly in the United States and the United Kingdom, has found that rape victim advocates can be important actors in addressing the needs and concerns of the victim within the criminal justice system (Brooks & Burman, 2016; Campbell, 2006; Maier, 2008; Martin, 2005). These advocates can be volunteers or employees of rape crisis centers who work independently of, but in collaboration with, the prosecutor’s office. They can also be employed directly by the police station or the prosecutor’s office. Kolb (2011) illuminates how U.S. rape victim advocates serve in two primary roles: care work and legal work. They provide care work to victims of sexual assault by listening to their stories and validating their emotional responses and decisions moving forward. They provide legal work by helping them navigate the legal process and providing information and guidance. Brooks and Burman (2016) also found that the rape victim advocates they interviewed in Scotland similarly did care work in addition to their legal work because they gave “support and advice for how to cope with the process rather than simply information about the process” (p. 217, original emphasis).

However, research also points to the struggle rape victim advocates have to be seen as legitimate actors in the criminal justice system (Gaines & Wells, 2017; Kolb, 2011). One solution then could be the model of the provision of an independent legal counsel for victims of sexual violence. This lawyer represents victims and their needs and is not as tied up in the investigation and prosecution of the accused (Wilson, 2005). Like victim advocates, victim-lawyers do both care work and legal work in their professional labor with sexual assault victims. But, they are able to advance the case of their client in ways that advocates cannot (Braun, 2014). As Raitt (2010a) points out, “unlike the type of support provided by rape crisis centres and similar bodies, which is largely therapeutic and practical,” an independent legal counsel has the power to affect the case by intervening on behalf of the victim in procedural matters and in interactions with the police, prosecutor, defense attorney, and judge (p. 268).

Feminist legal scholars have called for the implementation of a system wherein rape victims had their own legal counsel since the 1980s (Smart, 1989; Temkin, 2002). More recently, Raitt (2010a) argues that providing an independent legal counsel for victims of sexual violence may be “the single most significant contribution to the ability of rape complainants to withstand the legal process and give their best evidence at trial” (p. 268). A range of legal systems have already implemented an independent legal counsel for victims of sexual violence. In the United States, military courts have provided a Special Victim Counsel (SVC) to victims of sexual violence since 2012 in an effort to improve the legal situation for them. They are appointed regardless of whether the victim decides to report and pursue an investigation against their perpetrator and have been shown to drastically improve the satisfaction of victims who engage with the legal system (Garvin & Beloof, 2015). The International Criminal Court (ICC) also has an extensive victim representation program, despite logistical challenges presented by large numbers of victims (Killean & Moffett, 2017). Although there are problems with the bureaucratization of legal representation and marginalization of some victims, Killean and Moffett (2017) find that victims overall are able to access participatory rights and a voice in the international legal process.

On the national level, a number of European countries, including Denmark, Germany, Portugal, the Netherlands, Sweden, Norway, and Iceland, appoint a legal counsel for certain victims of sexual crimes, though the practice varies considerably by country and their unique legal institutions (Raitt, 2010b). There is variation as to when they are appointed, the procedural power they have, and what decisions they can appeal or contest, but there is significant overlap among countries as well (Raitt, 2010b). In this article, I look to the Swedish system of providing legal representation to sexual violence victims to investigate how the practice can be a powerful tool to prevent secondary victimization and find justice for victims by empowering them with legal agency and providing them with emotional support and connectedness during the criminal justice process.

Context

The Swedish criminal justice system is considered a “mixed” system, encompassing aspects of both inquisitorial and adversarial systems (Braun, 2019). The investigation process is considered inquisitorial, whereas the trial process features an adversarial system wherein the prosecutor brings the charges against the defendant. While the judge plays a larger role than in many strictly adversarial systems, these two parties (prosecution and defense) put forth the evidence for evaluation, and there is questioning and cross-examination of witnesses and the defendant (Ortwein, 2003).

In Sweden, crime victims, particularly of sexual crimes, have extensive participatory rights not seen in other countries. They access these participatory rights in two ways: as an auxiliary prosecutor or through a private compensation claim during the criminal trial (Antonsdóttir, 2018). In theory, a victim of sexual violence has the right to challenge the prosecutor on the decision to press charges, how the charges should be filed, and what evidence is presented. They also have the right to pursue private prosecution if the state decides not to, although this is extremely rare (Braun, 2019). In practice, the access to and application of these rights varies by the court (Antonsdóttir, 2018; Statens Offentliga Utredningar [SOU], 2013).

A sexual violence victim’s main source of institutional support to access these rights comes through their lawyer, called målsägandebiträde in Swedish. Sweden has guaranteed the right to an independent legal counsel for victims of sexual violence since 1988, a period when “victims’ rights” was emerging as a concern of criminologists and policymakers throughout Western countries (Braun, 2019; Tham et al., 2011). The concern about victims’ rights, particularly in Scandinavia, is also connected to the commitment to a gender equality initiative, especially because the independent legal counsel is used almost predominantly in cases of sexual violence and intimate partner violence (Tham et al., 2011).

The legal counsel representing the victim has procedural rights during the investigation and trial, including appealing and challenging trial proceedings (Diesen et al., 2009). The victim’s legal counsel has an unconditional right to be present at all questioning, hearings, and trial processes. They have the task of filing the victim’s compensation claim, which in Sweden happens alongside the criminal trial rather than in a separate civil trial (Carlsson, 2010). They also have the right to request closed doors for the trial proceedings, meaning that the trial hearings are not open to the public, or that the victim testify and be questioned over videoconferencing, rather than face-to-face with their perpetrator (Brå, 2016).

However, even if they are guaranteed the right to their own legal counsel provided by the state, many rape victims do not use the legal counsel. A 2005 review by the Swedish National Police Board and the Prosecutor’s Authority found that only three out of 10 rape victims received their own legal counsel; by a 2019 report, the number had increased to six out of 10 rape victims (Brå, 2019a). The term itself, målsägandebiträde, is not a common term used in the Swedish language. Målsägande is an old Swedish term for the “one who owns the case” rather than the more commonly used modern language of crime victim (brottsoffer in Swedish; Lindstedt-Cronberg, 2011). While the word itself (målsägande) is an indicator of the powerful procedural rights that Swedish victims of crimes have under their system, the terminology may be a hindrance to victims who have never heard of the role of the victims’ legal counsel before.

The Swedish government has initiated several official inquiries into how to improve the position of crime victims, particularly victims of interpersonal crimes (Brå, 2016, 2019a; SOU, 2013, 2016). In response to the finding that a significant number of victims fail to access their right to legal counsel, the Swedish government included a number of policy changes in the 2018 reform of the sexual crimes legislation (Ministry of Justice, 2018). These policy changes included the mandate to provide the legal counsel from the initial stages of the police investigation and with clearer instructions to the victim that the lawyer is free for them. Specific competencies were implemented as well for victim-lawyers (Ministry of Justice, 2018; SOU, 2016). There is hope this legal reform will ensure better and more consistent support for the victim (personal interview with Annika Öster, Director of the Crime Victim Support Authority).

Method

The results described in this article are based on 15 months of fieldwork in Sweden between 2017 and 2019. In-depth, open-ended interviews were conducted with 48 participants, including seven lawyers working as målsägandebiträde, or counsel for the injured party. For this article, I refer to them also as the victim’s lawyer or legal counsel. Most of the lawyers I interviewed lived and practiced in Stockholm; two were outside of the capital region.

Other participants included various others engaged in professional work with rape victims when they report to different institutions and are processed through the system (Martin, 2005). These professionals include, for example, police officers, prosecutors, nurses, doctors, and social workers. I interviewed several individuals from each of these categories. I also interviewed feminist activists who work around issues of sexual violence and state policy, state bureaucrats in governmental organizations focused on the legal system and victims’ rights, and politicians. Per my approved ethical protocol, participants who are public figures and who gave consent to be identified by name, position, and organization, are named. The rest of the participants have been given pseudonyms to protect their privacy.

Participants were recruited through meetings at events, conferences, or protests; through email contact with nongovernmental organizations; and through snowball sampling. Although most interview participants were based in Stockholm, the capital of Sweden, there were also participants from the biggest Swedish cities of Malmo, Gothenburg, Umea, and Uppsala, and a few from smaller towns in central Sweden. The geographic spread of participants reflects the population demographics of Sweden in general. Most interviews were conducted in person in Uppsala or Stockholm, but some took place via Skype due to geographical or schedule constraints. The duration ranged from 45–90 min, with most lasting about an hour. Interviews were audio-recorded and transcribed verbatim.

For the purpose of this article, I focus mainly on the semi-structured and open-ended interviews with victim-lawyers. The lawyers I interviewed were all women between the ages of 26 and 45 years. They had varying degrees of professional experience as a victim’s lawyer. Two were recent law graduates (within 3 years) and worked under a more experienced lawyer. One had 15 years of experience and was a former prosecutor. Most worked specifically with criminal cases. One worked as a defense lawyer and as a victim’s lawyer. One worked mainly in economic criminal law, but then took on the role of victim’s lawyer when assigned. The sample somewhat reflects the diversity of lawyers who work as målsägandebiträde. Anyone with legal training can be put on the list that the courts use when they assign a legal counsel for a victim of sexual violence. However, the lawyers I interviewed all had extensive experience and a commitment to work with cases of sexual crimes, whereas there are many lawyers who work as målsägandebiträde without the same experience.

All the lawyers I interviewed spoke English and Swedish. Although I understand and speak Swedish, interviews were conducted in English. Swedish words were used occasionally for specific words and phrases. In quotes, I retain these Swedish words with English translations in the brackets.

The interview guide was developed and revised throughout my fieldwork process, as I was made aware of the roles of these lawyers and their importance within the Swedish legal system. Interviews with the lawyers focused on three main themes: (a) their role in the criminal justice system; (b) interactions with their clients, particularly rape and sexual assault victims; and (c) how their role has changed over time as new legislation has been proposed and passed. Other participants were asked about their professional work as well and their perspectives on the law and how it has changed over time. They were also asked about their interactions with and opinions of lawyers who work with sexual assault victims. Without my prompting, they often brought up the role of the victim’s lawyer within the legal system during discussions of policies in place to improve the experience of rape victims.

I employed an inductive, thematic approach to open coding my interviews following the methodological approach of Luker (2008). I first read through the interviews several times and identified broad themes that emerged as patterns in my interview data. On the subsequent readings, I identified more narrow themes within the broad themes, and so on. I explored and discussed these themes with other researchers who study sexual violence in Sweden in both formal interviews and informal conversations. I used the qualitative coding software MAXQDA to assist with the coding of my interviews. The analysis I performed yielded insights into how these legal professionals view and perform their role in the criminal justice system, and ultimately, how they focus on the needs of the victims as more important than the goals of the organization itself.

Findings

The provision of an independent legal counsel for victims of sexual violence contributes to a more victim-centered model of the criminal justice system that shifts the focus from procedural indicators of justice, such as a conviction of a perpetrator, to less concrete forms of justice, such as victim participation and emotional well-being. The lawyers’ responsiveness to the needs of the victims they represent can serve as a protective measure against secondary victimization, improving outcomes for those who report their experiences of rape to the criminal justice system. The lawyers work in two primary ways: (a) accessing participatory rights and improving well-being for victims through information and advocacy, and (b) providing emotional support and connectedness in an impersonal criminal justice system.

Monica Burman (2010) argues that a fundamental tension in the criminal justice system in regard to gender-based violence is between seeing the person subjected to the crime as a victim versus seeing them as an agent. To be a victim implies being disempowered and submissive, whereas a legal agent is one with power and control. Garvin and Beloof (2015) define victim agency as autonomy, including the power to make decisions and exercise some control within the legal system. Other research points to the power of participation and decision-making control for victims of sexual violence (Antonsdóttir, 2018; McGlynn et al., 2017). In this vein, I also find that victim-lawyers in Sweden enable their clients to exercise legal agency through their procedural rights. The guidance they offer not only helps victims access their procedural rights and allows them to participate in the legal process but also provides information and connectedness that allows victims to find justice within a system that so often marginalizes them.

I argue then that the policy to provide an independent legal counsel could travel to other countries besides Sweden even if they do not have the same legal system and tradition with extensive participatory rights given to victims of sexual violence. Even without procedural roles such as filing the private compensation claim or serving as an auxiliary prosecutor, these victim-lawyers play an important role in finding justice for victims of sexual violence. When justice is focused on victims’ needs, rather than on linear procedural success in a criminal investigation and trial, the vital role of a supportive lawyer institutionalized into the process becomes clear. Although other professionals, such as rape victim advocates or social workers, could fulfill these demands, having an institutionalized legal counsel with training and professional legitimacy within the criminal justice system has the potential to be an intervention that changes the legal environment for victims and ameliorates secondary victimization.

Accessing Rights Through Information

One of the important tasks of the victim’s legal counsel is that of a guide through the confusing and often contradictory legal process. I find that the provision of a legal guide not only gives the victims knowledge about what they will go through and helps them prepare to navigate the system but also increases their access to participatory rights they are legally entitled to. Previous research with victims of sexual violence emphasizes the importance of participation to a sense of justice for victims, helping them avoid feeling revictimized by the legal system (Antonsdóttir, 2018; Daly, 2017).

To access the rights that victims are guaranteed by law in Sweden, they have to know what they can even demand. Elin, a rape victim advocate, told me about working with victims and letting them know they have a right to have a victim-lawyer and apply for compensation:

Yeah, it is a right according to the law system but it’s also not something anyone knows what it is until you actually get raped, or afterwards, so then it’s not really a right you have because you don’t know anything about it. It’s legally a right, but it’s not applied for the person.

Before they are raped, most victims have never been in a courtroom or had lengthy interactions with the police. The specificities of the legal procedure dictate what information they need to give for the case to be viable. Thus, having their lawyer there from the beginning can have a significant impact on the progression of the case and their satisfaction with the process. Sarah, a victim-lawyer, recalled cases where she was brought in after the initial police interrogations, and the problems that can arise:

What’s bad with that is the client doesn’t know what is expected of her so she answers questions oftentimes to be polite to the police. She tries to answer it as good as possible [. . .]. Oftentimes, I read police questionings, I read them afterwards, and already the client has put herself, without her knowing it, in a difficult situation because the defense will . . . put the first questioning from the last questioning and then they will stand against each other. That’s a huge problem that I see, especially when it comes to rape cases.

Because all police interrogations of victims can be used later on in court, Sarah emphasized the importance of a victim keeping to a linear and coherent story to maintain a “credible” story for the judges, particularly during the cross-examination by the defense. Although this points to other problems with the basic structure of the legal system when it comes to sexual violence, the victim-lawyers can help victims successfully navigate that practice by meeting them before their initial interview and encouraging them to answer the questions with the most detail possible, even if it feels shameful or invasive. Sanne, a legal advisor at an NGO focused on sexual health, reiterated the point:

If you don’t understand the legal process, that every word you say now will matter. If you are saying this word in one year, you will have to really choose how to say it. You cannot be ashamed and not tell everything from the beginning, all the details, because then you will have this altered story, your story will change.

Having contact with a legal counsel early on in the process will prepare victims to encounter the police interrogation having a better understanding of the legal process. Being able to give a thorough accounting of the incident can be an important source of justice-seeking to victims of sexual violence and a source of professional satisfaction for police officers (McMillan & Thomas, 2013). Access to an independent legal counsel then helps facilitate this process by preparing the victim and guiding the interrogation. I found that officers themselves acknowledged the importance to the case of having legal representation early on in the process. According to Henrik, an investigator who heads up a special unit for sexual crimes,

We have gotten some criticism that we don’t always have the victim’s advokat [lawyer] early in the process. We are trying to work hard with that, so they will be part of the process from early, from the beginning. It’s one success factor that we have them there, on board, in the early stages to be there for the victim.

As Henrik noted, having their legal counsel early on in the process can be a factor in the “success” of the case, defined by a police investigator as the ability to gather sound evidence and present a credible case to the court. According to him, if victims do not feel “supported” by the police and by their legal counsel, “they are sometimes not willing to participate in the investigation. If they don’t, we don’t do a very good investigation.” For victims, particularly of sexual crimes, to feel more inclined to continue to participate in the investigation after their initial report, feeling like you are believed and the police find you credible can be a powerful incentive. When the only source of evidence in a criminal trial is the word of the victim, their story becomes the critical key to the prosecution of the perpetrator.

Having this information about the interrogations not only protects the victim from being accused of inconsistencies in the future but also safeguards their emotional well-being in the present. Sarah, a victim-lawyer, emphasized the importance of being with her client from the beginning to prepare her for the interrogation by the police, because, as she said,

If they have already had a police report made, oftentimes, the client finds themselves in a questioning situation. And what most women, or clients, don’t know is that the police, I’m sure that it’s not meant to be an interrogation situation when you come to make a police report. But the fact is, the police want as much information as possible.

Even if the police have the best intentions when it comes to going through the procedure of having a rape victim file a report of a crime, they may inadvertently do harm by the very nature of their professional role (Martin, 2005). Thus, it’s important for victims’ legal counsel to be with them from the beginning, rather than later on in the investigatory process. They guide the victims through this process and the logistics involved, so that they do not have to do it alone with a lack of understanding of why the police want certain details or are asking questions in a certain way. Lawyer Nina said that she tells them about the questions the police will ask:

for them not to be surprised. To inform them, so they are prepared. And also how it works, about the legislation.

Nina does not want her clients to be caught off-guard in the police questionings, and she makes sure to meet them before any interrogations. If the målsägandebiträde is not with the victim from the beginning to prepare them for the initial interrogations, the victim may be unprepared for the questions that are asked and feel overwhelmed or anxious about the proceedings because, as lawyer Jasmeen notes, the police interrogation “can be a little rough.” She explains that the police “have to ask questions” and that these questions “sometimes lead to the victim thinking that the police don’t believe her, that she’s lying.” She explains to her clients that the police are asking specific questions to prepare the case and anticipate the questions from a defense attorney, not because they do not believe her story.

In this way, they prepare the victims for aspects of the investigation they may experience as unpleasant or upsetting. Most of the lawyers I interviewed emphasized this role as one of their most important ones. Sarah explained how she advises her clients before the first questioning:

If I get the message from the court that I’m the målsägandebiträde, then I want to meet the client before the first police meeting. And during our first meeting, I explain to her what is expected, what type of judicial criteria we have in rape for it to be able to be a rape, and also how the police officers ask questions and why those types of questions. So that she is as prepared as she can be.

The lawyers I interviewed were concerned not only with building the victim’s case but also with making sure the victim understood what was happening and did not feel intimidated by what was expected of them. Sarah does not simply tell her clients about the legal proceedings; she explains the why of the process. I found this frequently in my interviews: the need to break down not only what was happening but also why it was happening. The lawyers treated the victims as capable of understanding the intricacies of the legal process and advised them accordingly. They all believed that the more information they gave to their clients, the more satisfied they would end up with the process, even if the case did not end in trial.

Sarah emphasized the importance of regular meetings, by noting that during a traumatic experience, such as participating in an investigation, a victim may not be able to absorb all of the information in one meeting. She described her approach to meeting with victims as follows:

I think, especially when it comes to sexual abuse of any type, I think it’s important to have frequent contact with your client. Just because, I don’t have any degrees in psychology, but my experience is that you have different stages as a victim. I could have given every bit of information during our first meeting but maybe 10% of that stuck because you are in a traumatized situation. [. . .] The difference between the meeting before the hearings and the trial is more so to get the client to understand what the process of the trial is all about. I think it’s more so the feeling of knowing what’s going to happen in these types of cases. It’s more important for me, as the målsägandebiträde, than the actual judicial knowledge that I have.

As Sarah said here, she believes that meeting with the victim and helping them is even more important than her detailed knowledge of the judicial system. Even if she feels the information is basic or she has given it before, she repeats the information in subsequent meetings knowing that the victim may have trouble absorbing or remembering everything from meetings that happened months ago. Even if this goes beyond her basic job duties, she spends the extra time with her clients to ensure they are prepared and confident moving forward. These frequent meetings provide a consistent source of support and information with the same contact person. Brooks and Burman (2016) found that the victims in Scotland they interviewed also valued consistency in their interactions with rape victim advocates because then they would not feel the need to explain the details of the case over and over again.

The victim’s lawyer also provides information about the progress of the case. As in many other countries, rape cases can take a long time to process in Sweden. There is one central processing center for DNA evidence that often gets backlogged, with results not being released for up to 9 months (Amnesty International, 2019). Victims can go months without hearing anything from the police or prosecutors. Rape victim advocate Elin explained this is one of the hardest spaces for victims to be in, the “liminal waiting space”:

I would say that all of our support seekers are experiencing that it is quite a hard process. I think that is both because it has to be a hard process because someone is asking them a lot of hard questions in order to gather evidence, and obviously it’s really hard if you experience a trauma. But also because it takes a long time. [. . .] It’s very, very hard to be in this liminal waiting space and you can’t do anything about it basically.

It can delay the healing process to be continually on edge waiting to find out what the outcome of the investigation will be. The legal counsel for the victim then tries to ease the frustration of the victims they work with by pressuring the police officers to speed up their investigation, or by simply reassuring the victims that they were working on the case and it will be resolved as quickly as possible. Rape victim advocate Helena described what that looks like:

And generally, when the victim has no idea what’s going on in the police investigation because it’s been three or four months and they haven’t heard anything, so then the målsägandebiträde calls the police and says “ok, what’s going on?” Then they call the victims and tell them what’s going on.

In addition to walking the victim through the investigatory process and keeping them informed about the progress of the case, the lawyer also may prepare their client for the trial, if the case goes that far. This is not the likely outcome, as only 17% of rape cases reported to the police in 2018 were prosecuted in court (Brå, 2019b).¹ If the case does proceed to a trial, the lawyer spends additional time preparing their client for the process, which can be even more emotionally difficult than the interrogations. Konradi (1996a) found that many victims prepare themselves for a trial by researching the law, the trial process, and their role in the process. In Sweden, the victim’s legal counsel institutionalizes the victim’s preparation. They guide the victims through this process and the work involved, rather than them having to do it alone, starting from the beginning as an individual. Nina described how she prepares her clients for trial:

And also, of course, I will go through the questions that are really, really hard for them to answer so they are prepared. And why, the prosecutor, me, or the defense lawyers will ask these questions. So they know why. And that it’s not about questioning if they are telling the truth; of course, the defense lawyer is asking that, but not me or the prosecutor. But not letting the defense lawyer have the opportunity to ask these questions.

Here, again, Nina is focused on the well-being of the victim in how she prepares them for the trial. She uses the language of trauma to emphasize how she prepares them, saying that she is careful in how she approaches the preparation so she does not exacerbate what the victim may be going through. She notes that she tells her client that she is not asking the questions because she does not believe them, and that goes for the prosecutor as well, but that the defense attorney will try to cast doubt on the story through hard questions. Hearing the questions beforehand and prepping how to answer them allows the victim to not be surprised during the cross-examination.

Målsägandebiträde also engage with victims in other ways to help them access their legal rights during the trial itself. For example, Sarah recalled how she took over a case from a less-committed lawyer where there was an extreme threat of violence:

I took over a case about two weeks before trial. The lawyer in question had never met the client. [. . .]. So, the client didn’t have a relationship with her lawyer at all. And two days before I took over the case . . . she didn’t know what was going to happen during the trial. With that lawyer she had, she might as well have done it herself [. . .] this was a very threatening situation for her. He hadn’t even informed her that if there is a threat that is concrete, the court can, if you submit the question as a lawyer, the court can accept that you sit on another court, not even the same court, in a secret location. She really needed that. And she got that, after I took over. But she hadn’t even been informed that was even a possibility. And imagine if she had actually gone to the trial and been submitted to violence, that he or his family had actually hurt her or killed her.

According to Sarah, without a competent lawyer to provide information about those rights, the victim might as well be going through the process alone. What’s more, the victim might have been put in a potentially dangerous or life-threatening situation if forced to face the perpetrator, even in the relative security of a courthouse. Meeting with the client and having a deep knowledge of the case allowed Sarah to better protect her client from this threat. Sarah and other victim-lawyers mentioned other rights they help their clients access, including testifying via video conference, challenging the decision of judges to call certain witnesses or ask certain questions, or filing for skadestånd, the private compensation claim that can be filed in conjunction with the criminal charges in the Swedish court.

Emotional Support and Connectedness

Like the rape victim advocates Kolb (2011) interviewed, the Swedish victim-lawyers performed legal work as detailed above and care work as I will explore in this section. The victim-lawyers I interviewed saw care work and the emotional support of victims as perhaps their most important role. Other research points to justice for victims of sexual violence through a desire for emotional connectedness, support, and validation that what happened to them was wrong and they are listened to and believed (Daly, 2017; Herman, 2005; McGlynn & Westmarland, 2019).

However, there was sometimes a blurry line for the victim-lawyers between being an emotional support person and also a legal professional. My finding falls in line with prior research on legal professionals that details the emotional labor they do as they support their clients through the criminal justice process (Bartlett & Aitken, 2009; Kadowaki, 2015; Lively, 2002; Westaby, 2010). The victim-lawyers I interviewed all described supporting their victims emotionally, but some were more ambivalent than others about how they viewed this role. For example, Nina was emphatic that she is a legal professional and “not a psychologist.” When Jasmeen describes her role as the victim’s lawyer in contrast to the role of the prosecutor, whose focus is on securing a guilty verdict, she discussed how she provides this care:

C: Can you tell me more about your role as the victim-lawyer?

J: The guilty part, that’s the åklagare’s [prosecutor’s] deal, not the målsägandebiträde. My role is that I will be there for her. Care for her physical and psychological mind during this time. [. . .] It’s a curative role. You have to be with her, supporting her. Helping her.

Jasmeen even used a medicalized term and calls her role as a legal counsel for victims a “curative” one, “caring” for the victim’s “psychological mind.” Jasmeen emphasized the need to support and help the victim, rather than focusing on the outcome of the case, as the prosecutor would. Other participants spoke to this boundary between the roles of the different legal actors, using the language of care. Annika Öster, Director of the Crime Victim Support Authority in Sweden, told me,

They [the police] have to take her first statement . . . and get her a counsel. There is so much pressure, so much trauma, that they need to get information about. The police and prosecutors are really into investigating the case, not taking care of the crime victim. That’s not their first priority.

As she noted, the other actors in the criminal justice proceedings are goal-oriented and focused on the possible prosecution and conviction of the alleged perpetrator. They have certain logistical tasks to perform and do not necessarily consider how these tasks will impact the victim. In contrast, the lawyers have the needs of the victim as their priority. Her position here reflects the more widespread perspective in the Swedish criminal justice system: the prosecutor should be “objective” whereas the victim’s legal counsel should be “supportive” (SOU, 2007, p. 206).

The lawyers themselves reiterated this view as well. When asked about her most significant role as the victim’s lawyer, Nina first listed emotional support before going through the logistical things she does:

C: What do you feel is your most important role during the process?

N: To help them feel as safe as possible, to help them feel secure. To help them feel that they are being listened to.

Despite her earlier ambivalence about being seen as a therapist or psychologist instead of as a legal professional, she described the different functions she serves for victims as their lawyer: security, safety, and validation that their story is being heard and they are having a voice in the process. She listed these in response to my inquiry of her “most important role.” Some of the lawyers went into more detail about the words they use to convey this sense of safety and care. Sarah described the comfort she offered to her clients:

I give more or less the same speech: saying that, we are only human. Being sad, being scared, is only human.

She validates their feelings that may arise during the process and provides them with a human connection in a bureaucratic institution. “Connectedness as justice” was one form of justice that McGlynn and Westmarland (2019) found that their participants craved: being treated with dignity as a human being, recognized as “a whole person in society,” rather than simply a “piece of evidence” (p. 194).

The victim-lawyers remain with the victims not only throughout the investigation but also through the trial as well (Kilander, 2016). Research suggests that the trial itself can be one of the most re-traumatizing spaces for victims of sexual violence (Madigan & Gamble, 1991; Wilson, 2005). This is the case even in Sweden, where victims of gender-based violence have been guaranteed the right to “respectful and suitable treatment . . . by all authorities” since the 1998 Women’s Peace Reform (Burman, 2010, p. 175). However, in an adversarial system, the trial is fundamental to the criminal justice process, as truth must be ascertained through a confrontational encounter and questioning of the victim serving as a witness to the crime (Antonsdóttir, 2018; Raitt, 2010a). What’s more, Sweden does not have rape shield legislation as found in other countries, including Canada and the United States (Raitt, 2010a). Thus, this confrontation can be re-traumatizing for someone who is recounting their assault yet again with their character on trial as well. Jasmeen described the cross-examination by a defense attorney:

The whole trial in a court, for many of the victims, is like a rape situation again. Because they have to talk about it. They have many, many, many questions from the defense lawyers. So it’s a tough situation.

The trial, especially the cross-examination by the defense attorney, can be a long and arduous process. The lawyers I interviewed try to mitigate the distress of their clients through their supportive guidance. Maja described a particularly difficult case she had, noting that the victim was on the witness stand giving testimony all week long:

Because to have the courage to perform, to give a good testimony. [. . .] If she [the victim] hadn’t gotten a very good legal counsel, then she wouldn’t have pulled through that testimony, it was five days or something like that . . . it can be very long to do that.

The emotional support offered by Maja to her client allowed the victim to have the fortitude to testify and withstand the questions from the defense attorney for the entire week. Other lawyers described in detail how they emotionally prepare victims for the trial. Nina told me about how she prepares her clients for trial by empowering them to tell their story, in their own words. Rather than try to get them to conform to what would be perceived as a “good victim” by the court in their appearance and emotional display, she encourages them to be authentic and comfortable:

I always say they should wear something they feel comfortable in. I say they should be themselves. The most important thing is their story, it’s their story to be told. They are not there to perform. They are just there to tell the court what they remember.

The most important thing according to Nina is the victim being able to voice their experience in their own words, in front of the perpetrator and the others in the courtroom. She empowers them to participate on their own terms, rather than the terms of the institution. She extends to them agency in even a seemingly small thing as how to dress for the trial.

It was not only the lawyers themselves that emphasized their role of emotional support to the victim of a sexual crime but also others. According to Henrik, a police investigator,

Their role is to take care. It’s almost like the suspect’s defender, his lawyer, to take care of all the suspect needs. And the victim’s advokat [lawyer] is there to take care that the process is right. They should be at the interviews with the victims so that they can see that everything is going on in a proper way. They are able to put forth their points of view, some questions that might need to be clarified.

Here, Henrik emphasizes the importance of a victim having their own legal counsel by comparing it to the defendant having a defense attorney. Likewise, Antonsdóttir (2018) argues that “not allowing for parity of participatory rights between the survivor and the accused constitutes a case of misrecognition, a status injury” (n.p.). Providing a legal counsel, then, reinforces that the victim of sexual violence is an important party to the case and not relegated to a secondary position.

Many of the lawyers I interviewed discussed how they strived to maintain professional boundaries while displaying a genuine concern for the victim and their experience. This can be particularly difficult with sensitive topics such as sexual violence, which may trigger strong emotions or reactions. Nina described the importance of being empathetic but not dramatic:

It’s not just about the law. It’s about really being good with people, not being like, “Oh my God, that’s so terrible what happened to you!” It’s about, “Ok, I understand what happened was awful, I will make this the best it can be for you.”

In this quote, Nina discusses the importance of not displaying extreme emotions of shock or disgust, but rather being compassionate while maintaining a professional boundary. If they hear a story they doubt or have no feeling toward, they must still maintain the compassionate and empathetic display for their victim. Nina, and other lawyers I interviewed, argued that their emotional labor was crucial for a lawyer–client relationship that benefited the victim but could be difficult to achieve for some lawyers who were not as prepared, experienced, or invested in cases of sexual violence (see also Westaby, 2010).

Discussion and Conclusion

This article explores how a criminal justice system where rape victims have greater access to procedural and participatory rights and have an independent legal counsel to represent them can reduce secondary victimization through transparency and support. There is a significant debate about whether the practice of independent legal counsel could travel to other countries, particularly those with different legal traditions or systems, for example, common-law legal systems or those that are exclusively adversarial (Braun, 2014; Raitt, 2010a). Although in many countries, a complete restructuring would be required to give victims extensive participatory rights in the criminal justice system, victim-lawyers could still be effective at both providing support and guidance to victims and intervening on behalf of victims during the investigation and trial process regardless.

In the case of Sweden, having a competent and invested legal counsel enables victims to access their legal rights of participation during the investigatory process. It also provides a contact person within the system to keep them updated on the progress of their case. These Swedish victim-lawyers play a significant role in supporting their victims and allowing them to carve out a space of safety and validation within what can be experienced as an impersonal or inhospitable environment. As other research finds, when victims of sexual violence have a lawyer that informs, supports, and validates their experience, they are more likely to feel a sense of justice in the process they have gone through (Antonsdóttir, 2018).

Although I did not directly interview victim-survivors of sexual assault and rape, other research illuminates how victims understand the justice they seek after their assaults. McGlynn and Westmarland (2019) term what they found from their participants “kaleidoscopic justice.” The victim-survivors they interviewed craved “recognition, dignity, voice, prevention, and connectedness” after their assaults, seeking justice that was not often found in the conventional criminal justice system (p. 179). Some point to justice as validation that what happened was wrong, being able to speak up and voice what happened to them, and participation in the justice process (Daly, 2017). Herman (2005) finds that the victim-survivors she interviewed saw justice as a form of community healing. Antonsdóttir (2018) identifies justice as procedural participation, with the victim-survivors she interviewed desiring participatory rights that go behind being treated as merely a witness to a crime against their bodies. Thus, justice is multifaceted and contextual and differs from the binary (conviction/no conviction) logic of the criminal justice system.

Even though they work for the state and are contained within the criminal justice system, the lawyers I interviewed do not seek a one-dimensional, linear form of justice for their clients as is traditionally focused on by other criminal justice professionals. Rather, they espouse a victim-centered perspective of justice that emphasizes the well-being and satisfaction of the victim during the criminal justice process. They seek to prevent secondary victimization that can be perpetrated through interrogations by police investigators and the cross-examination by the defense attorney. Through supplying information about the process and the justification for the process, they tell their clients not only what will happen but also why everything is happening in that way. They provide emotional support through validating the victim’s experiences and feelings. If the case does go to trial, they discuss how the trial might trigger strong emotions and how victims can handle those. They provide emotional support by listening to the needs of their clients and validating their emotional reactions. In the interviews, they rarely discussed their logistical roles, such as filing a compensation claim for the victim. They gave examples and told stories that suggest they are more focused on the well-being of the victim, rather than on the outcome of the case. Their victim-centered perspective challenges the mainstream criminal justice organizational approach that focuses on the metrics of success including case clearance, lower attrition, and a criminal conviction. I connect my findings of the roles of victim’s legal counsel with the research of others with victim-survivors to make this point: a legal counsel for the victim is an important criminal justice intervention, and can promote a victim-centered view of justice to minimize secondary victimization and enhance victims’ satisfaction with their experience reporting their rape to the police.

I find that these lawyers play a crucial role in that they offer emotional support to victims, minimizing the effects of secondary victimization and improving outcomes for victims. This emotional support can come in the form of information, preparing them for unpleasant aspects they will have to go through, and carefully explaining why the police or the prosecutor ask certain questions or demand certain things of the victim. The guidance they offer not only helps victims access their procedural rights but also provides support that allows victims to find justice within a system that so often dismisses them. Emotional support also comes from the lawyers being present throughout the process: meeting them, believing their story, and talking through with them the outcomes if they are not favorable to the victim. In addition to their support role, the victim-lawyer has more power to affect the proceedings and influence the outcome of the case in a way that rape victim advocates and other support workers cannot.

When a new sexual crimes law was proposed and passed in 2018, the Swedish government included a provision to reinforce the policy that a victim of sexual violence has their own legal counsel with them from the beginning. With what is known about secondary victimization during criminal justice proceedings, it is hopeful that the new policy will be applied in such a way as to ensure that victims have access to supportive legal counsel early and often. In this way, access to legal counsel can be one remedy to the problem of secondary victimization and the emotional trauma that may accompany reporting to the police and being processed through the criminal justice system. If victims leave the process with a sense of justice, regardless of procedural outcome such as a conviction or incarceration of their perpetrator, that may be enough to encourage others to report.

I acknowledge the limitations in my findings as they are constrained by the lawyers who agreed to participate. I did not have access to court lists of lawyers working as målsägandebiträde, and instead relied on meeting lawyers at events and snowball sampling, and my interview participants were thus only those who were specialized in sexual crimes. However, in the Swedish criminal justice system, anyone with a legal education who has a basic competency can ask to be on the court’s list to be called as a målsägandebiträde. My participants discussed this at length, dismayed that someone such as “Knut” from a tax law firm who wanted to make extra money could use this as an “easy” opportunity for government funding (Sarah, a victim-lawyer, used this example, laughing as she said that unless you ask for a specific lawyer, “you might get Knut . . . I always use this name”). My findings then may not apply to all Swedish lawyers working as målsägandebiträde in general, but rather those who are making a career in supporting sexual violence victims. Further research could be conducted with additional lawyers who work as victim’s legal counsel on sexual crimes to better understand the variation in levels of support. Future research could also explore the implementation of the 2018 sexual crimes reform in regard to providing a legal counsel at the initiation of the investigation rather than later in the process. Because I completed most of my interviews in the year immediately following the legislative change, many of my participants did not yet have a firm sense of how the legislation was changing their professional experiences or those of victims who have reported.

My findings are also limited in that I did not directly interview victims who had reported their assaults to the police and been through the investigatory or trial process. Additional research could then investigate the perspectives of victims themselves on their ability to access rights and find justice in the Swedish criminal justice system. Interviews with victims in Sweden could tell us more about how they themselves view the efficacy of their legal counsel in offering them information and emotional support during the investigation and trial processes.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: American Scandinavian Foundation Dissertation Fellowship; Swedish Excellence Endowment Research Grant, University of Texas at Austin.

ORCID iD

Caitlin P. Carroll

Notes

Author Biography

Caitlin P. Carroll is a doctoral candidate in sociology at the University of Texas at Austin. Her dissertation, “Sexual Violence and Gender Equality in Sweden,” investigates the paradox between a high prevalence rate of rape and sexual assault and a high level of gender equality in the country.

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