Reinvestigating the Sexual Violence “Justice Gap” in the Swedish Criminal Justice System: Victim-Centered Alternatives to the Criminal Trial

Introduction

Feminists often criticize the system of criminal prosecution of sexual violence by pointing to the “justice gap,” or the disparity between the number of reported cases of sexual assault and the low rate of prosecution and conviction (Krahé, 2016; Temkin & Krahé, 2008). Many argue that a high rate of attrition is an institutional failure to get justice for rape victims (Alderden & Ullman, 2012; Jehle, 2012; Jordan, 2011; Kelly et al., 2005; Lovett & Kelly, 2009; Munro & Kelly, 2009). Sweden has an exceptionally large justice gap, which is surprising considering the Swedish government’s policy commitments to combatting gender-based violence and promoting gender equality (Freidenvall, 2015; Government Offices of Sweden, 2019, Government Offices of Sweden, 2020). A high percentage of cases in the Swedish criminal justice system are dropped during the investigatory process or are not taken to trial, a reality that has been framed as lamentable in a country dedicated to gender equality (Holmberg & Lewenhagen, 2020b).

What are the causes and consequences of the high attrition rate in the Swedish criminal justice system? In this article, I examine the justice gap in Sweden through an institutional perspective. I use Sweden as a case, a country with a “feminist government” that has been known for high levels of gender equality and a state commitment to promoting women’s rights (Government Offices of Sweden, 2019). This article is based on interviews I conducted with criminal justice and other professionals who work with rape victims, individuals who Martin (2005) refers to as “rape workers.”

While Sweden does have a high rate of attrition in rape cases, I posit that prosecution and conviction rates might not necessarily reflect how successful a criminal justice system is at providing justice for victim-survivors of rape. Rather, I reframe the concept of the justice gap to account for victim-centered policy reforms within the criminal justice system and to encompass more than simply the rate of attrition. By examining the statistics on reported rapes and criminal justice practices in Sweden, I illuminate how the justice gap is an inadequate concept to measure the efficacy and responsiveness of a criminal justice system to the needs of victim-survivors. Rather, feminist criminologists should consider the role of victim-centered policies and practices that may encourage reporting but do not increase the rate of prosecution—potentially widening the justice gap but not always reflecting a failure of an institution to serve the needs of victim-survivors.

Sexual Violence and the Criminal Justice System

Despite significant worldwide legal and policy reforms in the past 50 years, substantial challenges remain in finding justice for rape victim-survivors within the criminal justice system (Antonsdóttir, 2018; Corrigan, 2013; Herman, 2005; Jordan, 2011; White & McMillan, 2021). As almost a matter of institutional routine, victim-survivors are often dismissed, discounted, and disempowered (Martin, 2005; Taylor & Norma, 2012; Walker et al., 2020). Cases are dropped and labeled “unfounded,” particularly based upon the perceived inconsistency of a victim-survivor’s statements or the lack of evidence to prove a crime occurred (Alderden & Ullman, 2012; Kelly, 2010; O’Neal, 2019). The high number of cases that are dropped—known as the rate of attrition—has been pointed to as a sign of the criminal justice’s system inadequacy to achieve justice for victim-survivors of sexual violence (Alderden & Ullman, 2012; Jordan, 2011).

Researchers argue that seeing one’s case successfully prosecuted through the criminal justice system may not be in best interests of a victim-survivor, even if they have the “aspiration” that they may find justice within the institution (Brooks-Hay, 2020; see also; Herman, 2005; McGlynn, 2011; Patterson & Campbell, 2010). Even if a case progresses to a criminal trial and ends in a conviction, victim-survivors are susceptible to secondary trauma from the process itself (Konradi, 1996; Martin & Powell, 1994). Taylor and Norma (2012) question if rape reporting is a rational choice to make considering the possibility for secondary victimization and the lack of responsiveness to victim-survivor’s justice needs. In fact, Herman (2005: 574) writes that the traditional legal process is “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” (see also Campbell, 2005; Konradi, 1996; Martin, 2005; Martin & Powell, 1994; White & McMillan, 2021).

Given the high rate of attrition, the possibility of secondary victimization, and other logistical constraints that prevent reporting (e.g., time and other resources to participate in a trial), understanding why victim-survivors report is a key inquiry in the feminist criminology literature (Brooks-Hay, 2020; Taylor & Norma, 2012; Williams, 1984). The decision to report rape is complicated, influenced by cultural understandings and legal definitions of rape (Brooks-Hay, 2020; Hansen et al., 2021; Taylor & Norma, 2012). In addition, institutional policies shape the possibilities and the potential of reporting experiences of sexual violence (Carroll, 2021; Schuck, 2018; Taylor & Gassner, 2010; Taylor & Norma, 2012). In order for rape victim-survivors to be encouraged to report, the reporting process must be accessible, and the justice outcomes must resonate with the needs of victim-survivors themselves. When sexual violence victim-survivors see the criminal justice system as a space where they are not subject to secondary victimization and their voices are heard, reporting rape and sexual assault is a more “rational choice” (Taylor & Norma, 2012).

Traditional markers of justice—like the conviction and incarceration of an offender—are not only rare in cases of sexual assault, but they often disproportionately target and punish marginalized communities (Bumiller, 2008; Gruber, 2020). What is more, the increasingly strong role of the carceral system and punitive policies in addressing intimate violence can harm victim-survivors themselves, both directly through secondary trauma when they report and indirectly through state-sponsored structural violence in marginalized communities (Gruber, 2020; Richie, 2012). How, then, can feminist scholars reenvision an institution that seeks justice for victim-survivors, according to their own needs, without promoting punitive policies?

In this article, I will discuss criminal justice reform through the lens of victim-centered justice. McGlynn and Westmarland (2019: 179) define victim-centered justice as “kaleidoscopic justice”: a “constantly shifting pattern” of “nuanced and lived experiences” that includes recognition and dignity in their interactions with the individuals with whom they disclose their assault, a focus on prevention of future abuse, and the opportunity to express their experiences and participate in the justice process. Other feminist researchers point to how rape victim-survivors express a desire for emotional connectedness, support, validation that what happened to them was wrong, and participation in the justice-seeking process (Antonsdóttir, 2018; Daly, 2017; Herman, 2005).

What is more, victim-centered research finds that rape victim-survivors do not necessarily seek a conviction when they report (Daly, 2017; Herman, 2005; Lievore, 2005; McGlynn & Westmarland, 2019). Instead, many victim-survivors aim to have their stories and experiences taken seriously, as a signal to the perpetrator that they were wrong despite the outcome of the investigation. Brooks-Hay (2020) finds that victims who reported to the criminal justice system in Scotland wanted to prevent the perpetrator from assaulting another woman, feeling a social or moral obligation to report. Research in the U.S. (Patterson & Campbell, 2010), Australia (Lievore, 2005), and New Zealand (Jordan, 2001) echo these motivations. Taylor and Norma (2012) call the decision to report rape a form of “symbolic protest,” not always in the best interest of the one reporting but important as a signal that sexual violence will not be tolerated. I expand upon the literature that highlights the voices and experiences of victim-survivors themselves by supplementing our understanding of rape reporting through the institutionalized perspectives of criminal justice professionals.

Methodology

This article emerged from a larger research project seeking to explain the paradox of the high incidence rate of rape in Sweden and the country’s high level of gender equality. To investigate this paradox, I conducted 15 months of fieldwork in Sweden between 2017 and 2019. My methodology is guided by Dorothy Smith’s (1996) practice of institutional ethnography. I define the institution of the “Swedish anti-violence regime” as encompassing state and non-state organizations that aim to address sexual violence in some way, similar to Martin’s (2005) definition of “rape work,” or the labor that is undertaken to attend to victim-survivors when they report and disclose to organizations. I conducted 48 in-depth interviews with state and non-state actors involved in anti-rape professional work and activism, including social workers, therapists, feminist anti-violence activists, political elites, state bureaucrats at the Swedish Crime Victim Authority, and victim advocates. Of the 48 interviews, fourteen interviews were conducted with criminal justice professionals. These included seven lawyers, a prosecutor, a police investigator, a lay judge, and four lecturers and professors in Swedish police education departments. It is these 14 interviews I mainly draw upon for this article, supplemented by a content analysis of documents, including reports, police training materials and press releases, parliamentary debates, and news media sources (Smith, 2001).

I chose to interview institutional actors to capture the prevailing practices and circulating discourses of the organization. I recruited participants through meetings at events, conferences, or protests; through email contact with non-governmental organizations; and through snowball sampling with other interview participants. Most interviews were conducted in person, but several took place via videoconferencing or phone due to geographical or schedule constraints. The duration of interviews ranged from approximately 45–90 min, with most lasting about an hour. Most participants were given pseudonyms to protect their identities. My approved ethical protocol permitted participants who were public figures—and who gave consent to be identified—to be named. But for consistency in this article, I use first names exclusively.

I asked participants about their professional work with rape victim-survivors when they report their victimization to the criminal justice system. Participants were also asked about their perspectives on and involvement with a 2018 sexual crimes legislative reform and their experience with and reaction to anti-violence social movements like #MeToo. After transcribing, I read through the interviews and began to inductively extract common themes and references. My coding was also deductive, using my knowledge of theories on sexual violence to guide my data analysis. For example, there is an extensive literature on “secondary victimization,” and the concept (explicitly and otherwise) was regularly mentioned in interviews with victim advocates and criminal justice professionals. I deductively coded using these already-developed concepts to build upon the themes that emerged from my inductive coding. I used the qualitative coding software MAXQDA to assist with the coding of my interviews. The rich interview data and the subsequent qualitative analysis illuminated the limitations of the justice gap concept when considering the processing of rape cases in the Swedish criminal justice system.

Rape Reporting and Processing in Sweden

Rape reporting is increasing in Sweden. In 2019, 5930 rapes were reported to the criminal justice system, compared to 4895 in 2017, an increase of 21% (Holmberg & Lewenhagen, 2020a). In the past decade, criminal justice statistics have recorded a 44% increase in rape reporting (Holmberg & Lewenhagen, 2019). But as noted in the introduction, relatively few of these reported rapes in Sweden end in a criminal trial and the conviction of a perpetrator. In 2018, only 17% of reported rapes ended in a conviction, and the conviction rate has been consistently falling in the country over the past decade, from a little over 30% in 2009.

The Swedish criminal justice system records reports of rape by incident, rather than by each report itself. In other words, if a victim-survivor reports that they have been raped multiple times over a period of time preceding the report, each of those incidents is reported separately (Von Hofer, 2000). Most other EU countries, for example, would count only one report in their national statistics (Holmberg & Lewenhagen, 2020a). Thus, if we look at the data on the percentage of victims whose cases are taken to trial in Sweden (considering that one person may report multiple instances of rape), the prosecution rate is even lower: around 7% in recent years (Holmberg & Lewenhagen, 2020a). This rate is consistently lower than most other countries in the EU (Fundamental Rights Agency, 2014; Holmberg & Lewenhagen, 2020a).

The propensity to report sexual violence is influenced by perceptions of how rape victims are treated by the criminal justice system, the stigma of being raped, and general trust or lack thereof in the criminal justice system (Von Hofer, 2000: 85). Williams (1984) identifies the two preconditions that are necessary before a victim chooses to report a rape: first, the person must identify themselves as a victim of a crime; and second, they must be confident that the criminal justice system will also identify them as a victim of a crime. Sweden has one of the highest levels of confidence in their criminal-legal system in the EU, according to a cross-national survey from Eurostat (Holmberg & Lewenhagen, 2020b), with over three-quarters of surveyed residents answering to a “high trust” in the Swedish criminal justice system.

In the past, most reports of rape were under circumstances of what Estrich (1987) calls “real rape”: that is, a physically violent rape by an unknown perpetrator in a public space (see also Krahé, 2016; Williams, 1984). But now in many national contexts, reports of rape by an unknown perpetrator are declining while reports of rapes perpetrated by a known individual are increasing (Lonsway & Archambault, 2012). The trend is particularly evident in Sweden: in 2020, 33% of reported rapes are perpetrated by an intimate partner, while 38% were committed by an acquaintance and 2% by another family member (Brå, 2021). Only 27% of reported rapes are committed by an unknown perpetrator.

Thus, more victim-survivors are reporting rape and other forms of sexual violence that are perpetrated by intimate partners, family members, and acquaintances (Brå, 2021). But sexual violence cases perpetrated by a partner or acquaintance are often more difficult to prosecute (Henry & Jurek, 2020; Lonsway & Archambault, 2012). The only evidence in many cases—especially rape among adults who are known to each other—is the oral testimony of the victim-survivor acting as a “witness” to the crime (Antonsdóttir, 2018). Even if DNA evidence is present, a common defense is that the sexual encounter was consensual, thus rendering the physical evidence moot (Henry & Jurek, 2020; Laugerud, 2020).

In 2018, the Swedish parliament passed a sexual crimes legislative reform, changing the legal standard for the crime of rape to a consent-based one. In previous iterations of Swedish law, the crime of rape required the use of force, coercion, or a “particularly vulnerable state” (Bladini & Svederg Andersson, 2020). Since the 2018 consent law change, convictions for rape have increased, from 190 convictions in 2017 to 333 in 2019 (Holmberg & Lewenhagen, 2020b). This increase has been noted as a positive development by the Swedish National Council for Crime Prevention (Brå) and feminist anti-violence activists (Ericson, 2019; Holmberg & Lewenhagen, 2020b).

In this article, I call for a different approach to evaluating justice for rape victims. Using a victim-centered lens to examine the Swedish criminal justice system’s policies and the processing of rape cases, I speculate that an increase in convictions does not always represent victim-survivors’ best interests. Counter-intuitively, I suggest that the low prosecution rate in Sweden may potentially signal progress in justice-seeking by victims of sexual violence, which I will detail further in my discussion. With victim-centered reforms in the criminal justice system that prioritize victim-centered justice beyond prosecution, it is possible victim-survivors are more likely to report, even those experiences of sexual victimization that do not conform to the “real rape” stereotype (Estrich, 1987; Lonsway & Archambault, 2012).

Furthermore, I suggest that victim-centered policy reforms have institutionalized victim-centered justice that may encourage reporting without increasing prosecutions and convictions. My findings are based on two policy reforms in Sweden that center the needs of rape victim-survivors: (1) granting victims extensive participatory rights, particularly through the provision of legal counsel for all victims of sexual crimes from the initial stages of the investigation and (2) offering financial compensation for victim-survivors for both pecuniary and non-pecuniary damages. In the following sections, I will detail how these practices in the Swedish criminal justice system may be more in line with the justice demands of victim-survivors than punitive measures.

These policy reforms do not necessarily reduce attrition in rape cases as they are investigated and prosecuted. For example, being provided with a legal counsel may not increase the likelihood that the case is taken to trial and the perpetrator is convicted. Similarly, the provision of financial compensation often proceeds without a conviction. But these policies and practices can contribute to other forms of justice like participation and validation. I speculate further that these policies may even increase reporting of sexual crimes (see also Taylor & Gassner, 2010). Without completely restructuring their adversarial criminal justice system, Sweden has endeavored to create a more responsive and victim-centered process, with the possibility to seek alternative justice beyond a conviction. As Leif at the Swedish Crime Victim Authority told me:

Conviction rates are one thing, meeting with rape victims is another thing. Even though we might not be able to get a 100% conviction rate, we could always be 100% when it comes to meeting and treating people who say they have been victims of a rape or sexual abuse.

While it may be impossible—at least, according to the current evidentiary standards of the criminal justice system—to obtain a high rate of convictions, what is within reach in the Swedish system is “meeting and treating” victim-survivors of rape in a better, more responsive way. This is then a more attainable and potentially more important intervention than an increase in convictions, what is typically framed as “justice” (Cook, 2011).

Participatory Rights and Legal Counsel

The first policy intervention is the provision of an independent legal counsel, or victim-lawyer, for victim-survivors of sexual violence. In Swedish, they are referred to as målsägandebiträde, literally meaning a support for the one who “owns the case” (Antonsdóttir, 2018; Braun, 2019). Victim-survivors of sexual violence in Sweden have had the right to be appointed their own legal counsel, paid for by the state, since 1988 (Kilander, 2016). Having an independent legal counsel can facilitate a victim-survivor’s access to their participatory rights in the investigation and trial process (Carroll, 2022). In Sweden, victims—particularly those who have been victimized by sexual crimes—have extensive participatory rights in the criminal justice system that are not available in other countries (Antonsdóttir, 2018). In most criminal justice systems worldwide, these rights are virtually nonexistent: victims have little say in decisions and are rarely even kept informed about the progress of the case (Braun, 2019; Sulley et al., 2018).

But in Sweden, victim-survivors of sexual violence have substantial rights to participation in their case, including acting as an auxiliary prosecutor or through filing a compensation claim, as I will detail later (Antonsdóttir, 2018). By law, a victim of sexual violence in Sweden also has the right to challenge the prosecutor on the decision to press charges, how the charges should be filed, and what evidence is presented. Victims have the right to pursue private prosecution if the state decides not to, although this is extremely rare (Braun, 2019).

Being appointed a legal counsel has clear, tangible benefits, but it also serves as a signal that the victim-survivor is an important party to the case (Antonsdóttir, 2018). According to police investigator Henrik,

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.

Henrik emphasized the importance of a victim-survivor having their own legal counsel by comparing it to the defendant having a defense attorney, a practice that is standard in legal systems across the world. The defense attorney is rarely questioned as a legitimate participant in the criminal-legal process. Providing a legal counsel for the victim-survivor reinforces the importance of their participatory role and shields the victim-survivor from being relegated to a secondary position. Victim-survivors are then not merely a “witness in [their] own case” but an active participant in the legal proceedings (Antonsdóttir, 2018).

In addition to helping them access their participatory rights, a victim’s legal counsel also provides logistical and emotional support (Carroll, 2022; Kilander, 2016). Jasmeen, a lawyer who worked as a victim’s legal counsel, described her role as the victim’s lawyer in contrast to the role of the prosecutor:

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 emphasized the need to support and help the victim, rather than focusing on the outcome of the case, as the prosecutor would. Instead of seeing procedural justice as the only (or best) form of justice for victims, Jasmeen described justice through the lens of care and providing support for the victim-survivor. Other actors in the criminal justice system are goal-oriented and focused on the prosecution and conviction of the alleged perpetrator. In contrast, the victim-lawyer has the justice needs of the victim-survivor as their priority. One lawyer, Nina, listed helping victims feel like they are listened to, safe, and secure as an important part of her role as a legal counsel for a rape victim, saying that her “most important role” was:

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

As Nina says here, she is there to listen to the victim-survivor and support them during the investigation and possible trial, important victim-centered practices. Lawyer Sarah described how she validates the emotions of her clients by telling them that “we are only human. Being sad, being scared, is only human.” By doing so, she offers human connection and dignity. Their legal counsel interacts with the victim-survivor as “a whole person in society,” rather than simply a “piece of evidence,” as they might be seen by police investigators or other criminal justice actors (McGlynn & Westmarland, 2019: 194; see also; White & McMillan, 2021).

I speculate that having their own legal counsel might even encourage further reporting, by providing victim satisfaction in the criminal justice process, regardless of the procedural outcome. When asked about what her clients seek when they report to the police, one lawyer, Sarah, told me that:

I have lots of cases that do not go to trial, but the client is satisfied with the knowledge that he now knows that she made a police report against him, and he now knows you don’t do that, at least to her.

Sarah describes justice as the desire for recognition that what the perpetrator did was wrong and the ability to convey that to the perpetrator to possibly prevent a future sexual assault. She went on to say that, as a lawyer, “of course I always want to see convictions of the crimes that have been made against my client.” But at the same time, she recognizes that the victim-survivor with whom she is representing may be better served by an alternative form of justice.

In summary, offering the right to participation and providing a legal counsel to access that right serves as an institutionalized victim-centered policy and practice within the Swedish criminal justice system. As Raitt (2010: 268) argues, a state-funded independent legal counsel for victim-survivors of sexual violence may be “the single most significant contribution to the ability of rape complainants to withstand the legal process.” By institutionalizing victim support and participation through state provision of a legal counsel, the Swedish criminal justice system seeks to improve outcomes for victim-survivors who report, outcomes that extend beyond a criminal trial.

Financial Compensation

A second victim-centered policy intervention is the provision of financial compensation for victim-survivors of sexual crimes, called skadestånd in Swedish. Tort law is of course not unique to the Swedish system. Civil suits for claims of sexual violence are found in many criminal-legal systems (Antonsdóttir, 2020). Other countries also have criminal injuries compensation programs, which vary significantly in how much money is received and in what they pay for. In many countries, the funds are provided directly from the state (not from the offender), unless a separate civil case is pursued by the victim-survivor (Smith & Galey, 2018). Victim compensation programs in some countries—for example, in the U.S.—only pay for pecuniary damages, costs that can be accounted for, such as medical bills and therapy (Dahlstrand, 2011; Maniloff, 2015).

What differs in Sweden is that the civil claim for compensation is filed as part of the criminal investigation, not in a separate court. Sweden also has three avenues for rape victims to get financial support, rather than a single, more restrictive scheme found in other countries. First, the victim can be granted damages from the perpetrator should the judges find the evidence convincing. A civil claim in the Swedish legal process has a lower burden of proof, a “preponderance of evidence” rather than evidence beyond a reasonable doubt. Even if they are denied compensation directly from the perpetrator, sexual assault and abuse victims can also apply for compensation through their private insurance company. Finally, after they have exhausted these two options, victims also have the option to apply for money directly from the state through the Swedish Crime Victim Support Authority, Brottsoffermyndigheten. This government authority can also pay damages if a perpetrator is unknown, or if the perpetrator is found responsible for damages but lacks the financial ability to pay in full.

Unlike in some other countries, victim compensation in Sweden also pays for non-pecuniary damages, for the violation of a victim-survivor’s “integrity” (Dahlstrand, 2011). As the director of the Swedish Crime Victim Support Authority, Annika, told me in an interview:

You get your compensation for, of course: physical injuries, psychological damages, ruined clothes, and you get this kind of kränkningsersättning: compensation for the violation of private integrity. You get a sum of 100,000 crowns [about $11,000].

Thus, a victim-survivor can get compensation for expenses due to physical or psychological injury or loss of tangible items (pecuniary damages), and they can also receive a sum of money for the “violation of their personal integrity.” Holder and Daly (2018) argue that in order to be seen as true restitution for the harm done by a sexual assault, compensation must be an amount that pays for medical treatment or other tangible expenses and accounts for the emotional suffering from a sexual assault.

When most sexual crimes do not end in a criminal trial, financial compensation may provide acknowledgment of the harm caused to the victim-survivor by the offender. Non-violent assaults by a known perpetrator are the least likely to end in criminal charges due to the difficulties of proving beyond a reasonable doubt that a crime occurred. However, since the evidentiary standard for compensation is a lower threshold, financial compensation could then be a practice to acknowledge harm and provide reparations to the victim when prosecution is not a possibility. Maja, a lawyer, described to me why financial compensation is what she called “a lower claim”:

Because then you aren’t one person against the state, you are two people against each other. It’s much easier to get money than to get a conviction.

Not only is it “easier” to be awarded damages rather than the perpetrator being convicted, but a civil claim also gives the victim a clearer legal positioning (Antonsdóttir, 2020). Rather than simply being a “witness” to a crime that is being prosecuted by the state, the victim is a legal participant in the civil case with their legal counsel filing the compensation claim and representing them. In Sweden, where the civil claim is integrated into the criminal case, the victim’s legal counsel is responsible for the compensation claim rather than the prosecutor, who represents the state (rather than the victim) in the criminal trial (Dahlstrand, 2012). What is more, the compensation claim is based on written accounts and evidence, rather than the principle of orality like in a criminal case (Laugerud, 2020). Thus, the victim does not need to testify and be cross-examined and questioned to file a compensation claim, as in a criminal trial.

In many countries, civil cases against a perpetrator of sexual violence are only an effective route when the perpetrator has a substantial disposable income or assets and the means to pay a settlement (Maniloff, 2015). But in Sweden, the amount awarded to a victim-survivor is not tied to the offender’s ability to pay. As Annika, director of the Swedish Crime Victim Support Authority, told me:

If there is a perpetrator who can’t pay, it’s the same thing. You can get it from us [the government authority] instead. And then we turn to the perpetrator and make him pay in the long run, back to the state. That’s also an important thing for the crime victim, that the one who really hurt you is the one who is going to pay, in the long run.

In this system then, the victim gets the compensation even if the perpetrator cannot pay right away (or at all). Most importantly, the victim does not have to continuously interact with the perpetrator since the state takes over the responsibility for the payment.

As Annika points out, victim-survivors may desire that their perpetrator is ultimately responsible for the financial redress as they are the “one who really hurt you.” Antonsdóttir (2020) found in her interviews with rape victim-survivors in Iceland that some thought paying damages to be a “meaningful consequence” for a perpetrator. Swedish lawyer and activist, Maja, when reflecting on how she would feel as a victim herself, told me:

Now that I’m reflecting on it now, if I ever would be a victim of rape… I think it would be more satisfying for me to get money or something, have them be punished in relation to me, because they would have to get money to me, in that case.

As Maja also told me, a criminal trial not only has the potential for secondary victimization, but it does not necessarily provide justice for the victim, but instead represents justice for the state. In a criminal trial, according to Maja, “you do not get anything, except maybe the satisfaction of the person being convicted.” In contrast, financial compensation provides a tangible and direct benefit to the victim-survivor. If the offender is the one who must pay, it also provides a sense of recognition though the state instituting restitution for the harm that was done.

Forcing the perpetrator to pay is not without concern, however. Research in the U.S. suggests that policies with seemingly good intentions to address gender inequality, for example, pursuing men for non-payment of child support, disproportionately punish low-income men (Cozzolino, 2018). According to the Swedish Crime Victim Support Authority, even though they actively pursue recourse from the offender, they also consider the person’s “financial rehabilitation” and adjust the payment plan accordingly ¹ . Antonsdóttir (2020) even suggests a policy whereby an offender can “pay off” their debt to the government by participating in rehabilitation or therapy to change their behavior. She found that one of the desires of victim-survivors is to prevent the perpetrator from committing sexual violence again by requiring them to participate in rehabilitation to recognize what they did was wrong and to prevent it from happening again (see also McGlynn & Westmarland, 2019). In this policy recommendation, rehabilitation can be integrated into the compensation process.

Moreover, feminist researchers have pointed to other concerns with compensation schemes to address rape. One long-standing and persistent myth is that women falsely report rape for monetary gain, and many victims are hesitant to “confirm” this myth by accepting money from their perpetrator (Antonsdóttir, 2020). Victims might fear that the pursuit of financial compensation muddies their credibility, which is not without cause. One study from England and Wales revealed that defense attorneys reference compensation claims to discount the victim claims during the criminal trial, leading victim advocates to recommend applying after the resolution of the trial (Smith & Galey, 2018O. Smith & Galey, 2018).

In Sweden, however, receiving financial compensation has become a normal part of the criminal justice process, especially for victims of sexual violence and other crimes of “integrity.” The policy applies almost universally to victims who report to the criminal justice system. In my interviews with victim-lawyers and other criminal justice professionals, the filing of skadestånd was regularly mentioned as a vital part of the justice process, even though it was not initially a question on my interview guide at all. For example, victim-lawyer Sarah mentioned financial compensation first thing when describing how a disinterested lawyer had failed their client, saying that, when she took over 2 weeks before the trial, “he still had not asked her about skadestånd!”

Crime victim compensation is widely supported by the Swedish public, and when it is debated or criticized, it is usually because the victim has been denied it (Mannelqvist, 2010). In looking at recent political news articles on skadestånd in the most read Swedish newspapers, the stories often involve politicians calling for an increase to the funds: for example, in 2018, the Moderate Party (who are center-right), campaigned on an initiative to double the compensation levels for rape from 100,000 to 200,000 Swedish crowns [approximately $11,000 to $22,000 USD], or 300,000 for serious offenses (Johansson, 2018). The importance of financial compensation for victims of rape is evident, and its integration into state institutions offers victims an alternative form of justice through recognition that they are believed and validated in their seeking help after the assault.

Discussion and Conclusion

The low rate of convictions of sexual assault and rape has been previously framed as the “justice gap” for victims (Temkin & Krahé, 2008). The rate of attrition, or the number of cases that are lost between reporting and the trial, is high in Sweden, even when considering the statistical specificities in how they report the number of incidences of rape and what constitutes a “cleared case” (Diesen et al., 2009; Holmberg & Lewenhagen, 2020a). I suggest, however, that a high attrition rate could be a positive sign in a country. If more victim-survivors are encouraged to report partner and acquaintance rape, then the number of reports will increase while convictions will remain difficult to achieve. Thus, the attrition rate, or justice gap, will increase or widen (see also Lonsway & Archambault, 2012).

By reforming a criminal justice institution to one that is more sensitive to the justice needs of victim-survivors, the Swedish state encourages reporting. When asked about the barriers to reporting rape in Sweden, the president of a national anti-violence against women organization, Jenny, told me:

The barriers are fewer and fewer, which you can see in the higher rates. For a long time, we spoke about physical violence, and in recent years, we’ve been starting to speak about other kinds of sexual violence as well. I think it’s much easier now for a woman to report. We’ve been very clear in society that you can report, that you should report.

Victim-survivors in Sweden are encouraged to report more experiences of sexual victimization, not only those that are physically violent. These experiences of sexual victimization may be more difficult to prosecute and convict.

I suggest that the justice gap—a high rate of attrition of rape cases—is not always a good measure of justice for victim-survivors or the relative success or failure of a criminal-legal institution. In Sweden, there has been a concerted institutional effort to give victim-survivors access to legal counsel and participation in the justice process and provide them with alternative justice like financial compensation. These policies do not necessarily increase the likelihood of the case going to trial and ending in a conviction, but they can provide justice that may be even more important than procedural justice. Research has found that incarceration is not even necessarily an effective deterrent or solution for sexual crimes, but rather disproportionately harms marginalized communities, even victim-survivors themselves (Richie, 2012). While procedural justice that sees a perpetrator convicted and removed from society may represent justice for the state, it often does not reflect justice for the victim-survivor. Rather, even the very process of the investigation and trial process can leave victim-survivors worse off than if they had not reported at all (Hansen et al., 2021; Maier, 2008).

These initiatives shift the focus of the criminal justice system into a more victim-centered institution, improving the experience of rape victims and providing them with the justice that they desire, rather than the procedural justice of conviction and incarceration (McGlynn et al., 2017). Previous research with victims who have reported to the criminal justice system reveals the importance of facilitating an active role for the victim-survivor in the criminal justice process, in addition to recognition of harm done by criminal justice professionals (Antonsdóttir, 2018; Daly, 2017; Herman, 2005; McGlynn et al., 2017; McGlynn & Westmarland, 2019). When victim-survivors of sexual violence encounter a system that offers them these things, the risk for secondary victimization is lower and the criminal justice system will be seen as a place where justice can be realized, even if outside the conventional markers of success like a conviction of the perpetrator. As one Swedish lawyer told me, justice for some of the victim-survivors she works with is “putting your foot down” and declaring that sexual assault is wrong, that it should not be normalized and silenced.

I speculate that more victim-survivors are reporting (despite low prosecution rates for sexual crimes) because they believe the Swedish criminal justice system will take their victimization seriously, even if prosecution is not feasible. Sexual violence researchers who do research with victim-survivors find that their participants often seek justice for recognition that harm was done and with the hope that the perpetrator will not reoffend if they are brought in for questioning. In Sweden, victim-survivors have access to institutionalized alternative forms of justice, including the right to participate in the legal process through their legal counsel and financial restitution for the harm done to them.

Since my findings emerge from an institutionalized perspective, additional research with victim-survivors in Sweden is warranted to assess the efficacy of the above policy reforms in their implementation. While I engage with the literature on justice “from the victim’s perspective” (Herman, 2005), my findings do not include a firsthand account of the experiences of victim-survivors as they navigate the Swedish criminal justice system. Additionally, an intersectional approach would identify if the justice practices and outcomes vary by race, ethnicity, class, and immigration status. A better understanding of the needs of victim-survivors in disclosing and seeking help would also require taking into consideration the perspective of those who choose not to report and the barriers they face in reporting.

In conclusion, these victim-centered policies have the potential to reform criminal justice systems in other countries into a more responsive institution. For example, providing a victim-survivor with their own legal counsel is symbolic—victim-survivors are perceived as important parties in the case—and practical, as victim-survivors have a legal professional who offers support and guidance through the process. What is more, reforming crime victims’ compensation schemes to provide for non-pecuniary damages paid by the offender themselves could offer a source of justice through holding the offender responsible for the harm done to a victim-survivor by the sexual assault. Since in many legal systems, a civil claim does not require the same evidentiary standards as a criminal claim, financial compensation could be sought even in cases where prosecution is not feasible or desired by the victim-survivor. By using a state-sponsored program as the mediator of the payment, victim-survivors can be given the compensation as a lump sum to use as they see fit, while the state takes over the collection of the claim. These policy reforms would not drastically alter the criminal justice system, but they could make a sizeable difference in offering victim-survivors a sense of justice without expanding the reach of the carceral state and harming marginalized communities.