Busting rapists out of prison – Why it is so hard to write about wrongful convictions
Sometimes the hardest things to write about are also the most important.
I am often asked what I write about. Recently, the answer has been “busting rapists out of prison”. It is an awkward answer, though a great conversation starter.
The background is this: In Sweden we have long had problems with poor judicial safeguards in rape trials. This grew worse in 2018 when certain legal changes were made. To make a long story short, according to official figures 28 percent of rape convictions are now based on nothing but testimony and hearsay, with no physical evidence whatsoever. Another 52 percent have weak evidence, like bruises, recorded calls to the police, drug tests, medical examinations, or excuses made by text messages. The result? Hundreds of convicted “rapists” now insist that they are innocent.
One of them is a personal friend of mine.
It is my belief that Sweden is in the middle of its biggest judicial scandal since the witch-burnings of the 1650s. But things are going slow, and as of yet the scandal has not received anything resembling the attention it deserves. When I asked a veteran journalist why, he told me it was just too difficult to write about.
Why is that? Here are six reasons why it is hard to write about wrongful convictions:
1. The presumption of guilt.
All civilized court systems have a “presumption of innocence”. This means that the accused should be considered innocent until proven guilty. It is the prosecution’s job to prove guilt, and not the accused’s job to prove his innocence.
Most people support this as a legal principle. But in practice the public has the opposite principle – the presumption of guilt. When we read in the paper that someone is accused, we often assume that they are guilty. Even more so if they are convicted.
We trust the system. Trust is a great thing, and it helps to keep civilization together. We trust the police, we trust the courts, we trust the papers. And usually we are right to do so.
But in the case of wrongful convictions, this trust backfires. Sweden is a high-trust country which explains our current problem with rape convictions. Many Swedes can’t accept that the justice system makes such systematic mistakes, which is why it continues to make such systematic mistakes.
This creates an uphill battle for journalists writing about innocents in prison. Often, the first person they will have to convince is themselves.
2. Politics.
Wrongful convictions often get highly politicized. The best example is the massive Dreyfus-affair in late nineteenth-century France. A Jewish officer was convicted of betraying military secrets to Germany. This grew incredibly infected, and involved questions such as antisemitism, fear of Germany, the prestige of the military, all of it made worse by cover-ups and cover-ups of the cover-ups.
The scandal may very well have been the greatest in history, and would dominate French politics for decades as “Dreyfusards” and “anti-Dreyfusards” fought it out. Some even blame the French collapse in World War II on the demoralization.
While the Dreyfus-affair may be the worst example, there are dozens of others, such as the Birmingham Six and the Guildford Four in Britain. In the United States, the most divisive cases have been related to race, such as the Scottsboro Boys in 1931.
Guilty or not guilty stops mattering when politics get involved. Most serious journalists do not want to get involved in that. And if they do, they lose credibility.
Curiously, when it comes to Sweden’s rape laws, the opposite is the problem. They are not political enough. This is because the new laws had (and have) wide political support. It is a strange alliance of radical feminists and law-and-order conservatives. Everybody hates rapists – and that blinded us to the fact that a lot of these rapists are actually just “rapists”.
3. Work.
Next, there is the fact that criminal cases are huge affairs. Many involve hundreds of working hours by police officers, judges, witnesses, prosecutors, lawyers, clerks and forensic scientists. This is a good thing, since we want it done right.
But sometimes things still go wrong. Especially since this great legal apparatus is very sensitive. Convictions often rest on tiny details or human witnesses. Mistakes and fraud can have huge impact. A witness that tries a little too hard to be a good citizen and help the police can destroy the life of an innocent man. The human factor can never be eliminated in a court system.
The size of criminal investigations makes them difficult to check. Just reading through the court’s decision and the police investigation takes time. Often the police investigation is also either unavailable or heavily censored. Truly double-checking things, such as talking to witnesses and making a new forensic investigation, is even harder. If an investigation takes a hundred hours to do, it also takes a hundred hours to check.
4. Doubt.
While it is often easy to tell that a sentence is weak, it is often extremely difficult to prove that it is wrong. Yet that is what must be done to clear someone’s name. The burden of proof switches when the conviction falls.
Even when people accept that the evidence is poor, they still often think “he probably did it”. While most people agree that this shouldn’t be enough to convict, it keeps people from becoming engaged in a case.
For instance, would you campaign to have someone released just because you had a suspicion that he might be innocent? Would you put in the hundreds or thousands of hours it would take to overturn the conviction? Almost certainly not.
Few things are as paralyzing as doubt. Even if we think there is 90 percent chance that someone is innocent, that still leaves a 10 percent chance that he is guilty. That gnawing uncertainty is itself very demotivating.
5. The families.
The doubt surrounding a conviction tears up private relationships. When my friend was convicted, I chose to trust him. But I will never know for sure whether I was right to do so.
Often the only ones who stick up for a convicted man is his family and close friends. In Sweden, the mothers have been especially active. While this is admirable, it also raises doubts. Mothers are not expected to be level-headed when it comes to their sons. These mothers are sometimes told to just face the fact that their sons are guilty. Presumably, many more people think that without saying it out loud.
This makes it hard for journalists to get involved, because the convicted person’s greatest supporters are just not considered reliable. Even if they themselves trust the family, they would still have to convince the public.
“He’s innocent - according to his is mother”, just isn’t enough.
6. No saints.
People wrongly convicted of crimes are rarely saints. There is, after all, something that drove the police to investigate them. Perhaps they have prior convictions. Perhaps they are, to put it bluntly, assholes. Perhaps they brutally mistreated their girlfriends, who retaliated with a false accusation. Or maybe they did do something wrong, though not as bad as that which they were convicted of. Often, the innocently convicted are poor, uneducated, young, socially awkward, mentally ill or from a disliked group.
My friend was a tattoo-covered immigrant with ADHD, and had a past in security and martial arts. He looked guilty.
When it comes to the new class of doubtful rape convictions in Sweden, the typical “rapist” is either immigrant or working class, awkward and sometimes even autistic, and sexually inexperienced. The average age of the accused is just 20, so about half are teenagers. In a few cases, a boy’s first sexual experience has led to a rape conviction.
Some things are just hard to write about. Unfortunately, these are often the most important things to write about.
Jakob Sjölander