2011-01-15 Julian Assange & Mens Rea, Sweden & Doli Incapax: Extradition Part 4

We are indebted to Julian Assange who apparently instructed his counsel to make available the "Skeleton Argument" for the extradition hearing proper.

It was expected, per my previous post Extradition Part 3 that the issue of extradition (and arrest) for the purposes of investigation only, would be a highly significant issue for the extradition arguments, and so it was.

One part of that document however that shocked me, that I have discussed with colleagues (likewise shocked) was paragraph 88, the legal implications of which I was unaware. It now seems that some (or indeed all?) of the prospective charges of a sexual nature in Sweden do not have as a required element that the prosecution must prove (for a conviction to be sustained) the element of mens rea, the "guilty mind" otherwise known as the fault element.

I have not found the relevant Swedish law and even if I did, the Google translator would not do it justice, so to speak. In the meantime I have no reason to doubt the lack of mens rea in Swedish sexual offences law per the Skeleton Argument.

Fault elements, while they can be inferred from the circumstances, range for example, from explicit clear knowledge of wrongdoing to recklessness, but as a general principle of criminal law, with exceptions and modifications of course, criminal justice systems require that not only the unlawful conduct be proven, but that the element of knowing that it was wrong needs also to be proven.

Paragraph 88 of the Skeleton Argument reads:

Mr. Assange reserves the right to argue that his extradition is barred by reason of extraneous considerations, namely that the EAW has been issued against him for the purposes of prosecuting or punishing him for his political opinions (limb (a)) and/or that he will be prejudiced at trial, etc., by reason of those opinions (limb (b)), or by reason of his gender as a result of the 2005 amendments to the sexual offences laws in Sweden which deny to men the protection of mens rea.

The latter point will also be made in respect of the “extradition offence” issue (see earlier), in that these gender amendments preclude any assumption that the Swedish offence contains the requisite element of mens rea.

Wipedia gives a good account of mens rea: actus non facit reum nisi mens sit rea meaning that the act alone is not sufficient, the mind also must be guilty, which is a questioning into the subjective mind of the accused.

At the opposite end, as opposed to the mens rea element, there are strict liability laws such as parking laws. Irrespective of state of the mind of the parking perpetrator, whether the coin meter is jammed; the power to the meter went off; you were having a baby in the car park and ran out of coins; even a life or death situation such as an earthquake: the "brown bombers" we well know are without mercy and will go the last mile to get you.

Nothing will save us from liability of the Scourge of the Streets, the Mania of local authority Mafia for a quick dollar: the ubiquitous, universally hated parking meters and their attendants.

Swedish law thus moves in the direction of a strict liability regime, with a prosecutor not entirely unlike a parking meter attendant, recently convicted of speeding, lacking in the finer points of persuadeability, ticketing a British judge in a car park outside the Old Bailey.

We can assume then that Swedish law has conduct alone as the necessary element which if proven establishes guilt, and that lack of consent is built into the conduct element.

Looking at consent issues for the moment:

The NSW Crimes Act, for example, on knowledge of consent to sexual intercourse states:

61HA(3) Knowledge about consent. A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a) the person knows that the other person does not consent to the sexual intercourse, or

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

This knowledge as it pertains to guilt or knowledge of wrongdoing, (or the opposite) is subjective, but can have external proofs, like a witness or a camera.

Juries are asked in the case of recklessness, in effect, not to apply an objective test but to focus on the mind of the accused. (R v O'Meager (1997) 101 A Crim R 196)

Apparently this is all of little to no account under Swedish law.

Instead of proving the guilty mind, a Swedish prosecution of sexual offences will ignore any reasonably held belief that the accused had as to consent, or even as to the belief and the "absolutely not guilty mind" of explicit consent: The State will instead impose an evidentiary test based on the accusation and evidence of conduct without a subjective element at all.

The state of mind of the accused, that he was innocent, along with the close corollary of belief of full consent, is no longer relevant.

(When one thinks of that at the "subjective" level, it's a corollary of sorts, perhaps it's more accurate to describe it as synonymous, but it's difficult to separate the two. In the case of sexual assault, the subjective mind knowing of consent has it it practically indistinguisable from innocence. Conversely lack of consent and guilt.)

Such a non subjective regime fits in rather well with Claes Borgstrom's statement not so long ago, "They are not jurists"

The only realistic interpretation of that is that Mr Borgstrom is saying (and I stress, not the alleged victims) that the women had difficulty in knowing, or don't know whether or not they consented. An odd circumstance to say the least, and counter intuitive.

The Swedish Prosecution, with guidance apparently from that same political figure, will decide when the alleged victims are not sure, to lay a charge, and so we see law becoming subverted by a new policy, a new politics of gender.

For sexual assault in Sweden, an indictment would read in effect something like this, ie NSW law without a mental element:

That the accused, Joe Bloggs on 3rd March 2010 at Euroville in the State of Sweden did have sexual intercourse with Heidi X without the consent of of Heidi X

The last bit, what we have in common law nations is the bit related to the mental element: "knowing she did not consent" is left out and irrelevant to the elements required in Sweden.

The Swedish elements required would therefore be:
1) The accused had sexual intercourse with the victim
2) The sexual intercourse occurred without the consent of the victim.

In such a regime there would be only one defence (that I can think of) and that would be for the accused to prove his innocence, and the only way to do that effectively would be to video record with audio, any and all acts of sexual intercourse.

Defence evidence otherwise by way of protestations of consent as a defence, and evidence of the subjective mind of an innocent accused, (not reckless, most reasonably believing there was consent), is of little to no account, or at best, having eliminated the subjective mens rea, an objective test is applied by the tribunal of fact, which asks, "Irrelevant to the mind of the accused, was consent given by our objective standards?"

That has to be the legal result of eliminating mens rea.

Imagine such an objective test in the hands of Mr Claes Borgstrom on the bench at trial, given the brand of gender politics that he espouses?

It's hard not to say that my advice to all men in Sweden (which I don't give incidently) is to video record all acts of sexual intercourse.

Proving one's innocence of course reverses the onus of proof contrary to the European Convention on Human Rights, Article 6, but that is the practical effect of eliminating mens rea as a required provable element of crime in Sweden.

That's what I would be arguing at Assange's extradition hearing, that if indeed the test for consent is objective and the subjective mens rea element is removed, the effect is to reverse the onus of proof, contrary to human rights law.

Most are familiar with the legal concept that a child under 10 cannot be held criminally liable--Australia and the UK among others. The principle in Latin, Doli Incapax is a rebuttable presumption of no liability (the situation in Australia, not the UK due to amendments) for children aged 10 to 14.

Sexual offences against children under 14 has lack of consent, and knowing of that, (a mental element on the part of the accused), a complete, irrelevant, non issue.

And that is so redolent of the Swedish regime, apparently: when it comes to consent as a defence, when the alleged victim is perhaps not sure of it, Sweden's legal regime may decide, as a matter of apparent gender policy, in effect, that the victim is not only innocent like a child, but is doli incapax incapable of giving that consent as a defence for the accused.

I don't think Swedish women should be treated as doli incapax, but I'm beginning to think the Swedish criminal justice system should be.

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