SWEDEN – 40
¶ 61
The other form of defamation under Swedish law is ‘criminal insult’ (förolämpning) (5:3
BrB). Unlike ‘defamation’, which is constituted by the communication of a defamatory
statement to a third person, ‘criminal insult’ deals with offensive conduct of the perpetrator A directed immediately towards the insulted person B him-/herself. The conduct does
not need to be a verbal statement; bodily movement and gesture may equally constitute
the act element of the offence. Statements that are defamatory under 5:1 BrB, if communicated to a third person, will normally constitute an insulting conduct 5:3 BrB but defamatory and insulting conducts do not overlap exactly. In the case law, calling a person ‘nigger’3 has been found to constitute criminal insult. In another case,4 the Supreme Court has
found that calling policeman ‘pigs’ or ‘swine’ (‘grisar’, ‘svin’) may amount to criminal insult; but the defendant was acquitted as the Court found that he did not have the intention
to insult.
1
Only natural persons are protected under Swedish defamation law.
The burden of proof for all other elements of the offence remains with the prosecution, which, in
defamation cases, is likely to have been brought by a private person rather than a public prosecutor.
2
See NJA 1989 s. 374. The actual Swedish term used in the case was jävla svartskalle, which has a pejorative connotation but not as emotionally charged as the word ‘nigger’ in the English/American language.
3
4
NJA 2004 s. 331.
¶ 61. Ch. 7 BrB contains provisions on several family offences. ‘Bigamy’ (tvegifte)
(7:1I BrB) is an offence not only for A1 (aleardy married) to enter into marriage with A2;
the offence is also committed by A2 who knowingly marries A1. Between 1 January 1995
and 30 April 2009, it was possible for partners of the same sex to enter into so-called ‘registered partenrship’.1 It is an offence – ‘unlawful marriage’ (olovligt ingående av äktenskap) (7:1II BrB) – for a person in such a registered partnership to enter into marriage
with another person. Under 7:2 BrB, it is an offence, through illegal means, to obtain consent to or licence for adoption of a person under 18 years of age. This provision is aimed
primarily at intermediaries acting as adoption ‘brokers’ and is not applicable in relation to
the (prospective) adoptive parents. The offence of ‘misrepresentation of family status’
(förvanskande av familjeställning) (7:3 BrB) consists in (i) the concelament or exchange of
a child or (ii) false registration, so as to misrepesent a person's familial status.2 7:4 BrB –
‘unlawful removal of a child’ (egenmäktighet med barn) – is applicable with regard to
children under 15 years of age if the removal does not amount to a crime under Ch. 4, e.g.
abduction (4:1 BrB). This offence can be committed even by perpetrator who is a joint
custodian of a child and he or she arbitrarily severs the child from joint custody without a
valid ground.
From 1.V.2009 marriage can be entered into by partners of the same or opposite sex, so bigamy can be
committed with respect to both homosexual and to heterosexual marriages.
1
2
B.
Such misrepresentation may be made in connection with inheritance or immigration cases.
S e xua l Offe n ce s
¶ 62. The primary interests protected by Ch. 6 BrB are the right to sexual selfdetermination, sexual autonomy and sexual integrity of a person. However, the legislator's
concern with the protection of vulnerable persons against exploitation means that sexual
¶ 62
SWEDEN – 41
autonomy is restricted in some cases. Purely moral, religious or even biological grounds
are no longer used as bearing justifications for the criminalization of specific forms of sexual conducts.1 The purchase and the procurement of sexual service are also criminalized
under Ch. 6 BrB; these offences may perhaps be justified under the broad umbrella of protection against exploitation. Ch. 6 BrB is structured mainly according to the following elements: (i) the nature of the sexual conduct, (ii) the means of perpetration (e.g. use of force,
exploitation) and (iii) the nature of the victim or the relationship between the perpetrator
and the victim. The provisions of Ch. 6 BrB are gender-neutral; almost all offences can thus
be committed by a male or female perpetrator against a male or female victim.2 A conduct
may fall under more than one provision in Ch. 6, in most cases there are explicit directions
that the defendant should be charged, in the first place, under the more serious offence.
There was a major revision of Ch. 6 BrB with effect from 1.IV.2005 and the definitions of
several central provisions have changed several times since then; caution should therefore
be exercised when dealing with older literature, case law and other sources.
1 See BrP&F p. 87. BrB has retained certain offences under the previous Penal Code that were justified on
moral grounds etc., e.g. the incest offences ‘sexual intercourse with a descendant’ (samlag med avkomling) (6:7I
BrB) and ‘sexual intercourse with a sibling (samlag med syskon) (6:7II BrB). It may be noted, however, that the
retention of these offences is now at least partially justified by the risk of exploitation rather than on moral
grounds etc. These incest offences are not discussed further in the present overview of offences.
Although the incest provision (6:7 BrB) is formally gender-neutral the offence in question can only be
committed by persons of opposite sex as the relevant criminal act there is ‘sexual intercourse’ (see ¶ 34 for
definition) and not other acts ‘comparable’ to sexual intercourse.
2
¶ 63. RAPE | The offence ‘rape’ (våldtäkt) (6:1 BrB) can be seen as a paradigm in
the sense that other offences under Ch. 6 can be described as variations of ‘rape’. It should
be borne in mind from the outset, as noted by some commentators, that in Swedish law
[t]he [legal] concept of rape has been stretched to such an extent that it no longer
bears any connection with the legal tradition or to the meaning of the word in ordinary language. In international comparisons, this way of conceptualizing ‘rape’ must
appear rather troublesome.1
Conducts punishable as ‘rape’ under Swedish law may thus, in some other legal systems,
be criminalized under another label or even not treated as a criminal offence at all.
The relevant sexual conduct for ‘rape’ is either intercourse or another sexual act comparable to sexual intercourse in view of the nature of the violation and other circumstances
of the case. The statute does not define ‘intercourse’ but it is clear from the travaux préparatoires and established case law that ‘intercourse’ means vaginal intercourse in this
context. In NJA 1981 s. 253, the Supreme Court stated that for intercourse to take place, it
was sufficient that the man's and the woman's genitals had come into contact with each
other. According to this notion of intercourse, there is clearly no need of ejaculation for a
‘completed’ intercourse. Nor is there a requirement of penetration; which means that superficial contact of the genitals may already suffice for the purpose of the act element of
‘rape’. As stated above, ‘rape’ may be at hand also in the case where the victim B has been
forced by the perpetrator A to perform or tolerate ‘another sexual act comparable to
sexual intercourse’ having regard to the nature of the violation and the particular circumstances of the case. It is established case law that the insertion2 of A's penis in B's
mouth, anus or vagina (if any) is comparable to sexual intercourse. The Supreme Court
SWEDEN – 42
¶ 63
found in NJA 2008 s. 482, referring to the travaux préparatoires,3 that the insertion of the
fist, a finger/fingers or an object into the anus or the vagina was comparable to sexual intercourse, while masturbation of the penis was not considered to be a sexual act comparable to intercourse. So, unlike ‘sexual intercourse’, which has a quite clearly and narrowly defined meaning, the concept of ‘sexual act comparable to sexual intercourse’ is
open to interpretation.
The second element of the offence of ‘rape’ relates to the means of perpetration. The
sexual intercourse etc. must be the result of either the perpetrator's use of force or threat
of criminal conducts or the exploitation by the perpetrator of the victim's particularly
vulnerable situation. The ‘use of force’ covers not only the kind of violence criminalized
under the provisions on assault (see 3:5–6 BrB) but also other application of force or
restraint criminalized as unlawful coercion (4:4 BrB). It is no part of the meaning of ‘use of
force’ that the victim should have made any protest or offered resistance. In cases where
threat is used as the means to obtain the sexual intercourse etc., there is no need that the
perpetrator him- or herself explicitly has pronounced the threat, the existence of a threat
may be understood implicitly. The decisive factor for the conduct element is that the
victim has perceived a threat and only acquiesced to the sexual intercourse etc. because of
the threat. On the level of the fault element, the perpetrator must be aware of – or at least
be indifferent to – the fact/eventuality that the victim has perceived a threat and only as a
result of that acquiesced to the sexual intercourse etc.4 ‘Rape’ can also be committed when
neither force nor threat is used. After the legislative reform mentioned in ¶ 55 above, 6:1II
‘rape’ was characterized in the BrB as the exploitation of the fact that the victim “due to
unconsciousness, sleep, intoxication or other drug influence, illness, bodily injury or mental disorder, or otherwise in view of the circumstances in general, is in a helpless state”. It
must be proved that the victim is in a helpless situation and that it is an improper exploitation to have sexual intercourse etc. with the victim under those circumstances. The case
law after the legislative reform appears to have set a rather high threshold for finding
someone as being in a “helpless state” with the result that some defendants prosecuted for
‘rape’ are acquitted of that charge. The legislator steps in again and the condition of being
“in a helpless state” has been replaced by the condition that the victim is “in a particularly
vulnerable position”, which is meant to include situations in which the victim cannot be
described as being totally helpless.5
‘Rape’ can be committed against any person. However, if the victim is under 15 years of
age (and in some cases also those between 15 and 18 years of age), the definition of the
offence and the sanctions are different; see ¶ 60 below. Due to the special nature of ‘sexual
intercourse’ and ‘sexual act comparable to intercourse’, only the person who performs the
intercourse or the sexual act comparable to intercourse can be held responsible as the
perpetrator; others who have aided in the commission of the crime of rape can be responsible as accomplice. Thus, if A1 threatens B with violence so that B is forced to have
sexual intercourse with A2, it is A2 who is the perpetrator while A1 is an accomplice (provided, of course, that A1 and A2 have acted together).
In many other legal systems the lack of consent constitutes the essence of rape. But as is
apparent from the above discussion, the notion of consent is conspicuously absent in the
Swedish definition of ‘rape’. However, there is very little practical difference between the
Swedish definition and other definitions of ‘rape’ in which the lack of consent is a distinct
element of the offence since the notions of ‘use of force’, ‘threat’ and ‘exploitation of a
particularly vulnerable position’ are interpreted quite extensively. The Swedish legislation
¶ 64
SWEDEN – 43
also uses the word ‘compel’ (tvinga) in the characterization of rape by means of force or
threat of a criminal act; there is clearly an element of lack of consent in the notion of
compulsion. There have been ongoing discussions at least since the 1990s to recast the
Swedish sexual offences in terms of consent but these discussions have hitherto not led to
any legislative proposal by the Government.
1
BrP&F p. 89.
2 In this context, ‘insertion’ encompasses – so to speak – ‘reception’, e.g. when A forces B to insert his penis
into A's mouth etc. This is reflected in the wording “to perform or tolerate” (att företa eller tåla) in 6:1I BrB.
3 Reference was made to the travaux préparatoires (prop. 2004/05:45) that led to the reform of Ch. 6 BrB,
which entered into force on 1.IV.2005.
4 There is considerable difficulty in proving this fault element, which involves the proof beyond reasonable
doubt of the perpetrator's awareness of and attitude towards the victim's perception of the threat and the
reason for the victim's action, i.e. a causal link between the victim's perception and his/her acquiescence to the
sexual intercourse etc.
The current wording of the rape and other provisions in Ch. 6 BrB is given in SGS 2013:365, which
entered into force on 1.VII.2013.
5
¶ 64. SEXUAL COERCION | ‘Sexual coercion’ (sexuellt tvång) (6:2 BrB) differs from
‘rape’ mainly in that the criminalized conduct here is ‘sexual act’, i.e. conduct that is sexual
without amounting to ‘intercourse’ or ‘conduct comparable to intercourse’. In principle,
the determination of whether an act constitutes the use of force or threat is the same as
that for the purpose of ‘rape’, except that for 6:2 BrB the threat can relate to acts that are
not criminal conducts (e.g. to report someone's crime). Like ‘rape’, exploitation constitutes
a means of committing ‘sexual coercion’ although, linguistically, a person who is in a helpless state (e.g. ‘passed out’ due to alcohol intoxication) can hardly be said to have been coerced into doing or tolerating anything. But despite this inappropriate label, ‘sexual coercion’ can be committed through exploitation.
There is no legal definition of what constitutes a ‘sexual act’. The term is however interpreted objectively in the sense that an act is deemed sexual only if it is typically seen as
such; the subjective experience of the perpetrator or the victim (including any unusual
idiosyncrasies or ‘fetishes’) is therefore, in principle, irrelevant. Typically, a ‘sexual act’ is
understood to be one that “arouses or satisfies the perpetrator's and/or the victim's sexual drive” or “is plainly capable of violating another person's sexual integrity ”.1 The most
central examples of sexual acts are those involving the touching of or by the genital of the
perpetrator or the victim. Whereas even a very brief superficial contact of the genitals may
amount to ‘sexual intercourse’ (see ¶ 56 above), the touching required for the purpose of
‘sexual act’ must, according to the case law, be ‘of a duration that is not insignificant’
(någorlunda varaktig). As mentioned in ¶ 56 above, in NJA 2008 s. 482 the Supreme Court
held that manual masturbation of the penis is a sexual act, but not one that was comparable to sexual intercourse. Conducts that do not involve physical contact are unlikely to
be considered as ‘sexual acts’.
There is no requirement that the person A1 who exerted the coercion is the same person
A2 who performs the sexual act with the victim B; in this case both A1 and A2 can be held
responsible as perpetrators if they have acted together.
SWEDEN – 44
¶ 65
This characterization has originated from the travaux préparatoires and often repeated in the case law
and in the literature, see BrP&F p. 89 and p. 95 and commentary to 6:1 BrB (under the heading ‘Samlag eller
annan sexuell handling’) in BrB-Komm.
1
¶ 65. SEXUAL EXPLOITATION OF A PERSON IN A DEPENDENT POSITION | A person, A, commits the offence ‘sexual exploitation of a person in a dependent position’ (sexuellt utnyttjande av person i beroendeställning) (6:3 BrB) if B has been “caused to perform or tolerate
a sexual act” through the “grave abuse” on the part of A of B's “dependent position” (in relation to A). No force or threat needs to be involved. In fact, the initiative to the sexual act
can be taken by the person B in a dependent position, so long as A, the perpetrator, can be
said to have abused this position. There is no definition of what is to constitute a ‘dependent position’, but the following examples have been given in the literature: hospital personnel–patient, prison guard–inmate, drug dealer–drug addict, teacher (as examiner)–student etc. It is however not sufficient that there exists a relationship of dependence; it is
only a crime when there is a grave abuse of someone's dependent position. The meaning
of ‘sexual act’ is the same as that in ‘sexual coercion’ (6:2 BrB).
¶ 66. SEXUAL HARASSMENT1 | Pursuant to 6:10II BrB a person A commits the offence
‘sexual harassment’ (sexuellt ofredande) if A “exposes him- or herself to another person, B,
in a manner that is likely to cause B discomfort, or if A otherwise – either verbally or through an act – harasses B in a manner likely to violate B's sexual integrity”. For there to be
a completed crime, the offending act must be perceived by B, but there is no requirement
that the act has actually caused B discomfort or that B actually experiences the violation of
his/her sexual integrity. The standard for determining whether an act constitutes sexual
harassment is an objective one.
The offence created in 6:10 BrB is labelled in Swedish as ‘sexuellt ofredande’ but this offence can be
committed in two distinct ways: (i) an offence against children below 15 years of age translated here as ‘sexual
molestation’ (discussed in ¶ 60 below) and (ii) the offence described in the present ¶, translated as ‘sexual
harassment’. The single label in Swedish has been given two different translations in order to accentuate the
difference between the different ways of commission of the offence.
1
¶ 67. SEXUAL OFFENCES AGAINST CHILDREN AND YOUNG PERSONS | A special system of
substantive offences as well as a more severe penalty scale apply when a sexual crime is
committed against a young person. In most cases different rules apply to children under
15 years of age and to children above 15 but below 18 years of age. To stress the point that
these offences are committed against young persons, the phrase ‘of a child’ appears in all
the offence labels (except for ‘sexual molestation’). There is a special provision in 6:13 BrB
stipulating that, for the purpose of Ch. 6 BrB, criminal responsibility for offences against a
victim B below a specified age shall attach to the perpetrator A even if A does not realize
that B is below a certain age but A has reasonable ground to assume that B is below that
age.
According to 6:4I BrB, a person A commits the offence ‘rape of a child’ (våldtäkt mot
barn) if A “(i) “has sexual intercourse with B, a child below 15 years of age, or (ii) conducts
another sexual act with B that – in view of the nature of the violation and other circumstances of the case – is comparable to intercourse. The meaning of ‘sexual intercourse’ and
‘sexual act comparable to intercourse’ is the same as that for ‘rape’ and it is such acts that
constitute the relevant sexual conduct of the offence. There is however no requirement of
¶ 67
SWEDEN – 45
the use of force, threat or exploitation. Intentional sexual intercourse and comparable
sexual act with a child below 15 years of age is thus always ‘rape of a child’; this is the case
even if the intercourse etc. is initiated by the child. The same definition of the conduct
element of ‘rape of a child’ is applied, moreover, to a child B above 15 but below 18 years
of age, “(i) if B is the offspring of the perpetrator A”, (ii) “if B is being brought up by or has
a comparable relationship with A” (e.g. if A is a step-parent), or (iii) “if A is responsible for
the care or supervision of B pursuant to a decision of a public authority” (e.g. if A is an employee at a home for mandatory care of young persons). If the crime described above –
when all circumstances have been taken into consideration – is deemed less serious, A can
instead be held responsible for ‘sexual exploitation of a child’ (sexuellt utnyttjande av barn)
(6:5 BrB), with respect to B who is below 15 or 18 years of age. The application of this provision is meant to be restrictive and is intended mainly to cases where B is approaching 15
years of age and is considered to possess the requisite degree of maturity for making his
or her own decision in this matter.
If the relevant sexual act falls short of ‘sexual intercourse’ or ‘sexual act comparable to
intercourse’, the perpetrator, A, who conducts another sexual act with a child, B, may be
held responsible instead for ‘sexual abuse of a child’ (sexuellt övergrepp mot barn) (6:6
BrB). There is, however, yet another category of conduct, viz. conducts that fall short of
‘sexual act’, the commission of which is criminalized pursuant to 6:10I BrB under the label
‘sexual molestation’ (sexuellt ofredande).1 Under this category of conduct are (i) ‘sexual
touching’ which is not a ‘sexual act’ (e.g. because the touching is of too brief a duration to
qualify as ‘sexual act’) and (ii) ‘an act with sexual implication’ (e.g. making a child play
with ‘sex toys’). The prohibited conduct under 6:10I BrB is the sexual touching by the perpetrator (A) of a child (B) below 15 years of age, or A's causing of B's performance or
toleration of an act with sexual implication by such a child.
According to 6:8 BrB, it is punishable for A to ‘promote or exploit the performance or
participation in sexual posing by a child (B) below 15 years of age’ for the offence ‘exploitation of a child for sexual posing’ (utnyttjande av barn för sexuell posering). This provision
is also applicable to B who is above 15 but below 18 years of age, if the posing by its nature
is likely to jeopardize the child's health or development (e.g. if the posing is performed in a
‘strip club’ in exchange for payment). This offence differs from the child sex offences mentioned previously in that a sexual act is not an element of the offence. What is required is
posing with a sexual content or in a sexual context. It may also be noted that the perpetrator is one who promotes or exploits the sexual posing and thus needs not him- or herself to be witness to the posing.
6:8 BrB creates the offence ‘purchase of a sexual act by a child’ (köp av sexuell handling
av barn), which at first sight appears to be the proper criminal provision to be used to
combat child prostitution. However, as 6:8 BrB is applied only if none of the other child
sex provisions in Ch. 6 BrB is applicable, it has in practice a rather limited area of application. The conduct element of the offence is fulfilled when A “induces a child B, being below
18 years of age, to undertake or tolerate a sexual act in exchange for consideration”. As a
sexual act involving any child below 15 years of age is always punishable pursuant to 6:4–
6 BrB, 6:8 BrB is practically relevant only for children between 15 and 18 years of age. The
child prostitution offence differs from the adult prostitution offence also in that the child
offence under 6:8 BrB prohibits the purchase of a sexual act while the adult offence prohibits the narrower category of casual sexual liason. The construction of the offence based on
SWEDEN – 46
¶ 68
purchase as well as the question of the applicability of this provision for acts committed
abroad (in so-called ‘child-sex tourism’ scenarios) will be discussed under ¶ 61 below.
The latest addition to Ch. 6 BrB is the provision in 6:10a BrB ‘contact with a child for a
sexual purpose’ (kontakt med barn i sexuellt syfte), which entered into force on 1 July 2009.
This criminal offence is intended to address the phenomenon of ‘grooming’, now often
effected through the Internet, but the statute covers all forms of contact and communication. For a completed crime, the perpetrator A must have “made an agreement to meet in
person a child B below 15 years of age with the intention to commit a specified child sex
offence and thereafter has taken a further step/s which is/are likely to facilitate the
meeting with B”. The specified child sex offences are: ‘rape of a child’, ‘sexual exploiation of
a child’, ‘sexual abuse of a child’, ‘exploitation of a child for sexual posing’ and ‘sexual molestation/harassment’, including of course – where applicable – the aggravated versions of
these offences.
Finally, 6:14 BrB provides for certain grounds for exemption from criminal responsibility. Pursuant to 6:14I BrB, for crimes committed against a child below 15 years of age
under the provisions on ‘sexual exploitation of a child’ (6:5 BrB), ‘sexual abuse of a child’
(6:6I BrB), ‘exploitation of a child for sexual posing’ (6:8I BrB) and ‘sexual molestation’
(6:10I BrB), criminal responsibility shall not attach to the perpetrator A “if it is obvious
that the conduct in question does not constitute a violation of the child B, having regard to
the minor difference in age and maturity between A and B and other circumstances of the
case”. This rule of exemption is most likely to be applied if A is just slightly above 15 years
of age and B slightly below, but the exemption rule was applied in NJA 2007 s. 201 where
A was a little over 17 years of age while B was 14½ at the time of the sexual act. Following
the introduction of 6:10a BrB ‘contact with a child for a sexual purpose’, a further ground
of exemption from criminal responsibility was added. According to 6:14II BrB, a person A
who has carried out the ‘grooming’ of the child B shall nonetheless not be sentenced for
the offence if it is obvious that A's sexual contact with B would not constitute a violation of
B if the sexual contact had occurred. The logic behind this provision is that if the acts that
A intends to perform with B would have been exempt from criminal responsibility, then
contact with B for the purpose of facilitating such acts should also be exempt from criminal responsibility.
1
See also note 1 under ¶ 59 above.
¶ 68. PURCHASE OF SEXUAL SERVICE AND SEXUAL PROCUREMENT | As a criminal law measure against the supply side of prostitution there has been a provision from the introduction of the present Penal Code prohibiting the promotion or economic exploitation of prostitution; the provision currently in force is 6:12 BrB on ‘procurement of sexual service’
(koppleri) and ‘gross procurement of sexual service’ (grovt koppleri). The act of prostitution as such has not been subject to criminalization.
However, it was rather unique for Sweden, when criminal legislation was introduced in
1998, prohibiting the purchase of sexual services (i.e. the demand side of prostitution)
while, at the same time, permitting prostitution as a legal activity. This criminal law measure was originally introduced as a separate statute outside BrB, but in connection with
the reform of Ch. 6 BrB in 2005, the provision was incorporated into the Penal Code as
6:11 BrB ‘purchase of sexual service’ (köp av sexuell tjänst). The perpetrator A commits the
offence if A “obtains a casual sexual liaison in exchange for consideration”. The label is
¶ 68
SWEDEN – 47
slightly misleading in that the crime is not completed through the conclusion of a contract
to purchase the sexual service; it is completed rather by A's obtaining the sexual liaison.
The expression ‘sexual liaison’ has a different meaning from the expressions ‘sexual intercourse’ and ‘sexual act’, which appear elsewhere in Ch. 6 BrB; according to the travaux préparatoires, ‘sexual liaison’ is sexual intercourse and other sexual contact. Thus, some physical contact between the perpetrator and the sexual service-provider is required. The
‘casual’ element is meant to exclude relationships of a more permanent character, so repeated purchases of sexual services by a regular customer are treated as casual for the
purpose of 6:11 BrB. The ‘consideration’ involved needs not be money but may be other
compensation with a pecuniary value, e.g. alcohol and narcotic drugs, which are the examples given in the travaux préparatoires. In keeping with the principle of ejusdem generis, it
is doubtful whether other ‘consideration’ not having an immediate money-value – such as
an offer of employment or service performed by the purchaser (e.g. car repair, help with
computer etc.) – would qualify for the purpose of ‘in exchange for consideration’. There is
an express statement in the statute that it is irrelevant whether the consideration is given
by the perpetrator him- or herself or by a third party. Thus, if businessman A1 pays a
prostitute B to provide sexual service to A1's client A2, and A2 obtains the sexual liaison in
the knowledge that the service has been paid for, A2 is the perpetrator while A1 is to be
held responsible as an instigator. B is not held responsible as an accomplice under the doctrine of concursus necessarius. It should also be noted that 6:11 BrB is subsidiary to the
other provisions of Ch. 6 BrB; thus if the use of force, exploitation of dependent position
etc. are involved, the other relevant provisions are applied.
A problem that remains unresolved in the application of 6:11 BrB concerns the territorial ambit of the statute.1 It is firmly established that sexual offences involving the violation of a person's sexual integrity (e.g. rape, sexual coercion etc.) constitute crimes against
Swedish law regardless of the place of commission and therefore can be punished in Sweden if a Swedish court has jurisdiction over the impugned conduct. Whether this is true
also of ‘purchase of sexual service’ is, however, a matter for diverging views. The wording
of 6:11 BrB provides no guidance on the territorial ambit of the prohibition, and the
travaux préparatoires are also silent on this matter. Reasoning based on the protected
interests is inconclusive as it is debatable whether it is public order or sexual autonomy/integrity that is protected, and reasoning based on the position of the statute in BrB
does not provide a clear answer either, as the provision was originated placed outside the
Penal Code. There is to date no precedent from the Supreme Court that settles the matter.
It is therefore unclear whether a person who obtains, outside of Swedish territory, sexual
liaison through purchase, has committed a Swedish crime at all.2
1 See PER OLE TRÄSKMAN, ‘«Den som betalar för sex är en brottsling» Om den svenska kriminaliseringen av
sexköp som ett medel för att motverka prostitution’, in Nordisk Tidsskrift for Kriminalvidenskab 2005 s. 73, at
pp. 85–86 and SOU 2010:49 Förbud mot köp av sexuell tjänst – En utvärdering 1999–2008, pp. 81–82.
2 It should be noted that this is a problem concerning what conducts are criminalized and not about jurisdiction. (If it is not a crime to purchase sexual service outside Sweden then the question of jurisdiction would
not arise.)