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sflow-er · 3 months ago

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About the settlement in YR S3

A discussion with @scatteredpiecesofme a while back inspired me to look more closely into the settlement between August, Wilhelm and Simon. I already dabbled in criminal justice meta after S2, but I didn't account for a settlement back then, so it's time to update my info!

Posting this, I know it's a topic people have strong feelings about. If you choose to read below the cut, please keep in mind that it's not meant to be a moral judgment. It's an attempt to review the case as presented in the show and interpret it through what I've learned about law and procedure in real Sweden.

TL;DR: The offences being settled are defamation and unlawful breach of privacy. The settlement of 1.2 million kronor is dozens of times higher than what Simon could realistically expect from court.

Sources: Swedish Criminal Code (EN-SV), Code of Judicial Procedure (SV), preparatory documents for relevant laws (this and this), reference collection on kränkningsersättning, cases available online or in the media (e.g. this and this on dagensjuridik.se), legal blogs, articles and legal advice websites (e.g. lawline.se, Domarbloggen), discussion on treasonable offences (SvD column, expert exchange, motion to parliament, this and this tabloid article), guidelines/advice for prosecutors (e.g. on defamation, day-fines).

Disclaimer: I'm just a layperson and not even Swedish myself, so it's entirely possible I missed something! Respectful discussion and corrections are very welcome!

The facts of the case against August

Quick recap

August committed criminal offences by filming and posting the video.

Sara reported August to the police.

August, Wille, Simon and their legal counsels and parents negotiated a settlement at the royal palace with Jan-Olof presiding.

JO said they wanted to avoid a trial. Rickard claimed the evidence and testimonies would not be enough to secure a conviction, and the video was not likely to be considered explicit.

Simon's counsel said Wille's legal team had already decided not to pursue the matter in court.

They settled for 1.2 million kronor, presumably per plaintiff.

The offences on the table

“Spreading that kind of video could be considered gross defamation, gross unlawful breach of privacy, and possibly a CP offence. The penal value is prison, in any case.”

It's pretty clear August also committed intrusive photography, but that overlaps with unlawful breach of privacy, so that might be why it wasn't mentioned. Here's a complete list:

- intrusive photography (kränkande fotografering, covertly photographing or filming someone in a private space) - unlawful breach of privacy (olaga integritetsintrång, disseminating sensitive images in a way that's liable to result in serious harm) - defamation (förtal, disseminating information that identifies someone as a criminal or their way of life as reprehensible, or is otherwise liable to expose them to contempt) - treasonable offences (högmålsbrott, a clause that, among other things, makes some crimes more severe when committed against a member of the Royal House) -CP (I'm not writing this out so the post doesn't get caught in filters)

Unlawful breach of privacy was also mentioned by Rosh back in S2. It's a fairly new offence that entered into force in 2018, and very few cases lead to a conviction (only 27 out of the total 1,876 in 2021). Even when a perpetrator is identified, it's hard to prove it was them (and no one else) using the device. Proving an intent of serious harm isn't easy either, but the court usually considers whether the defendant should have known that was liable to occur.

The main angle in the show was defamation, which doesn't need to be untrue in Sweden. It's all about exposing someone to contempt - and if the defamatory statement is also liable to result in serious harm, it becomes gross defamation. This is why Rickard, who already called gross defamation in S2, argues in S3 that outing someone no longer counts as exposing them to contempt (he's refuting that it was defamation at all).

Another way off the hook would be to show that 1) the statement was true and 2) the defendant was “obliged to make it” or it was “otherwise justifiable to provide information about the matter.”

The treasonable offences clause is a bit of a legal minefield. It allows the public prosecutor to demand harsher punishments for some crimes when they are committed against members of the Royal House, but it also creates questions of whether the royals are even able to bring these types of charges the normal way. It clearly didn't come into play in YR, but I'll return to it in the conclusion.

A CP offence was also mentioned in S2 by Rosh and Rickard. Rosh reckoned it was a sure thing and could land August in prison, but Rickard only listed it as a possibility. He said the penal value was prison “in any case” because gross unlawful breach of privacy is always punishable by prison (more about the penal values in my now-obsolete post).

Still, this was dramatic exaggeration by the writers. August is 18, and persons under 21 could not be imprisoned unless there were very heavy grounds for it back in 2020/2021. Even the stricter law from 2022 mainly applies to violent and gang-related offences.

By the old law and practice, any sentence given to an 18-yo would be reduced to 50% of an adult's sentence, and August is also a first-time offender. If convicted, he'd be looking at some combination of fines, youth community service, and/or a suspended sentence.

That's another silly thing about the Alexander ploy in S2, although not as silly as Alexander forgetting he had already been caught with the drugs.

So that's the potential crimes listed. We'll get to the crimes that were actually being settled in a little bit.

Relevant facts about procedure

To understand how they got from Sara's police report to the settlement scene, it's useful to look at some intricacies of the Swedish justice system that may differ from other countries.

The right to press and pursue charges

By Swedish law, most crimes are subject to public prosecution by the state. The police are legally obligated to start what is known as a “preliminary” investigation when a crime is reported, and the prosecutor is legally obligated to consider charges and pursue them. Regardless of what the victim/plaintiff wants.

There are two notable exceptions. Charges for målsägandebrott (“plaintiff offences”) can only be brought by the plaintiff, and angivelsebrott (“offences subject to report”) must be reported for prosecution by the plaintiff. If an angivelsebrott is reported by someone else, the plaintiff decides if they want the case to go ahead.

These are also the only types of crimes where the plaintiff is able to withdraw the charges. If they do, neither they nor the public prosecutor can ever bring the same matter again.

In the YR case, defamation is målsägandebrott, the privacy offences are angivelsebrott, and CP is always subject to public prosecution.

It's also possible for angivelsebrott to be publicly prosecuted when public interest calls for it (e.g. gross unlawful breach of privacy is often considered serious enough to meet this bar). The same goes for målsägandebrott under certain circumstances, e.g. when the victim of defamation is under 18. Public prosecution also applies if there are multiple offences and one of the other offences is subject to it.

If charges are raised by public prosecution, the injured party becomes unable to withdraw them (the state becomes the plaintiff in their stead).

Concurrent offences and protective interests

When someone commits more than one offence by a single action, these are assessed for brottskonkurrens (concurrence of offences).

In some cases, the offence with the harshest punishments 'consumes' the others so they no longer count. For example, gross unlawful breach of privacy is always punishable by prison, so it often consumes defamation and even gross defamation.

In other cases, all the offences count 'in concurrence'. One example is when the laws that were broken had different skyddsinteressen (protective interests). In the YR case, intrusive photography and unlawful breach of privacy have the same protective interest: both crimes infringe on the right to privacy and personal integrity. Defamation infringes on a person's honour and reputation, which is a different interest. Hence, unlawful breach of privacy of normal severity is often pursued and punished in concurrence with defamation (normal or gross), but less often with intrusive photography.

As for CP, Swedish law classifies it as an offence against the public order (not as a sex crime, although it can overlap with sex crimes such as using minors for sexual posing). The protective interest is twofold: the individual child's right to personal integrity, and the right of children at large to be safe from CP. So there is some overlap with the privacy offences, but it's also an offence that falls within a completely different area of law.

Note that the sentence is not given as the sum total of the concurrent offences! It's the sentence for the most severe offence, with increases for the concurrent offences (as determined by the judge).

Settlement vs. mediation

JO tells us the parties are doing förlikning (settlement) to avoid the matter going to trial. This is different from medling (mediation).

Settlement primarily applies to disputes, but it can also be a private, out-of-court resolution for some offences. In my understanding, these would be målsägandebrott or angivelsebrott, as the plaintiff agrees not to pursue the matter in exchange for compensation. The settlement also prevents public prosecution even if it is determined later on that the conditions for that are met.

Mediation is a process where a neutral party authorised by the court (not JO) brings the victim and perpetrator of a crime together. It can also be used for family law disputes, but this is less relevant for us. The parties can agree on compensation, but the main objective is just to discuss and process the matter. The perpetrator must admit their guilt in order for mediation to go ahead.

Mediation is separate from the court process, but the defendant's willingness to enter it and a favourable outcome may be taken into account. The prosecutor may bring less severe charges or even offer åtalsunderlåtelse (no-prosecution deal), whereby the offence goes on the guilty person's criminal record but they avoid trial and punishment. If a trial does happen, the judge may be more lenient.

How this all relates to the settlement scene in YR

Based on the above, the settlement in 3.01 must be for defamation, and very likely also unlawful breach of privacy. Intrusive photography is also possible, although the characters never mention it.

Defamation is målsägandebrott and privacy offences are angivelsebrott. Hence, the matter can be settled out of court.

It's hard to say if any of the offences could be gross, despite what Rickard said back in S2. The breach of privacy probably isn't, since it hasn't consumed the defamation or been publicly prosecuted. The defamation could certainly be (this would align with legal precedent for spreading sex tapes), but I think this type of gross defamation of the Crown Prince and another minor should already meet the threshold for public interest.

We don't know exactly when the settlement scene is set, or how long has passed between seasons. Offences involving minor parties must be investigated without delay, but it is possible that the prosecutor is still considering whether to claim public interest. If the settlement is finalised before public charges can be brought for these particular offences, that will no longer be possible.

The opposite is true for the potential CP offence. In my understanding, being able to settle out of court means that must already be off the table.

The police will have been legally obligated to open a preliminary investigation when they received a report about a legal (young) adult having filmed two minors in a sexual situation. Simon and Wille will have been notified of the privacy offences and defamation, and asked if they wanted the investigation to go ahead (since they didn't make the report themselves). But a CP offence is different. It's the kind of crime that must have been investigated even if the victims said they didn't want to press charges or refused to cooperate.

Based on the preliminary investigation, the prosecutor will have considered charges. August's age and development gap to Wille and Simon and the explicitness of the video will have been assessed. His defamatory (not sexual) intent and the other offences could have factored in as well.

I'm not going to guess any further at the reasoning, but no charges were brought. CP is subject to public prosecution, and that also applies to any concurring offences. The settlement wouldn't be possible if it was still in the mix.

Instead, they could be having court-authorised mediation with a neutral party, but only if August already admitted his guilt. (This was actually the part that confused me the most when I first watched the show and wasn't aware of the difference between the processes.)

Anyway. Now that we know what was being settled, I also want to look at the level of compensation.

Compensation compared to court sanctions

The settlement was for 1.2 million kronor. Presumably per plaintiff, as that was the number Simon's counsel gave him. Both he and Rickard described it as generous.

So how does the sum actually compare to what the court might have awarded Simon or handed down as a punishment to August?

Fines

If convicted in court, August could be sentenced to dagsböter (day-fines). The sum ranges from 50 to 1,000 kronor per day, and the minimum number of fines is 30. The maximum is 150, or 200 for multiple offences.

In this case, there are indeed multiple offences (two or three depending on whether intrusive photography still counts), so the absolute maximum is 200,000.

Now for some speculation!

A day-fine is the person's annual income divided by a thousand, adjusted for net wealth and debt. August is a cash-poor student with no job. He must get a bit of income from the estate and possibly some other investments, but if he can't afford to pay Simon back for the drugs and alcohol, it can't be much.

So, the base sum will be low. It gets raised by 50 kronor for every 500,000 of net wealth over 1.5 million, but then there's also a reduction for significant debts. If August truly has to sell his estate to free up 2.4 million, it can't be valued very high and/or he must be in serious debt. His day-fine will land in the hundreds, but I doubt it reaches 1,000.

It's hard to say how many day-fines he would get, but I don't think it would be anywhere close to 200. In examples found online, 40 seems pretty common for each of these crimes at normal severity. In one case, a man convicted of unlawful breach of privacy and gross defamation got a suspended sentence + 80 day-fines, which changed to 100 day-fines for just gross defamation on appeal.

Although the parties in these cases are all adults, while August is in the young offenders bracket. For example, he might get those 80 day-fines but no suspended sentence, or he might get something else entirely. Compare with a case where an 18-yo boy (17 at the time of the crime) spread a film of his friend having sex with a woman: he was convicted of both intrusive photography and unlawful breach of privacy but only sentenced to 35 hours of youth community service.

However, the boy did have to pay compensation.

Compensation payable to the victim

An injured party is often entitled to apply for compensation. In these types of crimes, it's called kränkningsersättning (compensation for infringement/suffering), and there is no cap on it.

However, there are some relevant sample cases online.

The boy in our previous example had to pay 25,000 to the woman.

A person who spread a sexual film showing a 14-yo girl was convicted of gross defamation and had to pay 25,000.

A man who secretly filmed an 8 to 12-yo girl in the bathroom was convicted of a CP offence and had to pay 25,000. The reference collection of cases says it's worth noting this happened before intrusive photography was criminalised as its own offence.

A woman who filmed a 16-yo boy having sex with his girlfriend and posted the video online was convicted of unlawful breach of privacy and gross defamation and had to pay 30,000.

A man who spread sexual photos of his ex to her friends and employer was convicted of gross defamation and had to pay 50,000.

A man who uploaded films of his ex on an adult site was convicted of gross unlawful breach of privacy and had to pay 60,000. In a very similar case before the privacy offences were criminalised, a man was convicted of gross defamation and had to pay 70,000.

The settlement sum of 1.2 million is 17 to 20 times higher than the highest examples. It's also 40 times higher than the example of the 16-yo boy and his girlfriend, which I think is a remotely similar case (although the place of filming was less private and the dissemination was less broad and damaging than in YR). On August's side, the 2.4 million is many times higher than the day-fines plus compensation, even if we don't know the exact numbers.

So that gives us some idea of the level of compensation and monetary punishment that Simon and August could realistically expect, but those aren't the only factors Simon might consider.

Conclusion: a trial could get very complicated

As mentioned above, Wille's legal team had already decided they would not be going to court. It's unsure if that could have even been done in the normal way.

Some legal experts believe the treasonable offences clause prevents members of the Royal House from bringing normal charges at all if they are victims of målsägandebrott or angivelsebrott, because they are considered a stately institution. Others think it should be possible if they just waive their right to treasonable offences, but the royals have never tried.

Instead, the public prosecutor may ask the government to authorise a treasonable offences charge. In theory, the government could say yes even if the victim themself said no, but that's extremely unlikely (for example, when a teen threw a cake in the real king's face in 2001, it was considered the king's decision). The prosecutor who handled the matter in YR could have already asked and been denied, or they could have decided against it if they knew Wille would object.

If Wille had decided to try and bring normal charges, his legal standing would have become a hot topic. If treasonable offences had been charged, the charges would have been public. Either way, the case would have gained a lot of media attention.

Wille being one of the plaintiffs could have also lead to a more stringent punishment for August. Especially for treasonable offences; the real cake-thrower was sentenced to 100 day-fines for harassment, which is a big sentence for a 16-yo (an adult could've got up to four years in prison). Even if they were normal charges, Wille was the one August intended to harm, which would have made the crimes all the more severe.

The level of compensation could have been higher too...at least for Wille. It's frankly beyond my comprehension as a layperson whether his and Simon's cases could have even been tried together due to their wildly different circumstances.

Simon is like any other person in the legal system. If the case did go to trial and August was convicted, he would receive compensation in line with the above. August would also have to pay his legal fees, as well as the potential fines.

It's hard to say how good the chances of a conviction were. Rickard was just defending August when he said identifying someone as gay was no longer considered defamatory, but that is true for Swedish society at large. However, it can still be defamatory if you out someone to people who can be expected to react with contempt (e.g. a religious group). For both defamation and privacy offences, it should also matter how widely the information was disseminated and how bad the consequences were (although you won't be rewarded for causing less harm than expected/intended).

We never actually heard if Rickard had a defence in mind for Simon's particular circumstances. On the one hand, Simon was already out, and he wasn't the target of August's harmful intent. On the other hand, surely August should have known he was liable to suffer serious harm by association. Their lawyers could argue these and other standpoints, and it could get complicated, especially if Wille couldn't be involved after settling.

For argument's sake... Let's say Rickard was right about the evidence and testimony not being enough, and Simon lost the trial.

He would have to pay both his and August's legal feels. Those are probably covered by the Erikssons' home insurance, but there will be a deductible of about 20%, and a cap of two, three hundred thousand. I assume this would normally be enough, but going up against “one of Sweden's best criminal lawyers” could still be a daunting prospect. Rickard might be representing his stepson for free at this early stage, but if the case went to trial and he was very confident they could win, that might change.

And leaving the financial stuff aside, Simon says he just wants the whole thing to be over. He doesn't want to have to rehash it all in court against August and Rickard, and although it's Wille's side who complain about the media storm, that isn't fun for Simon either. On the contrary, he's the one who's been targeted for hate and scrutiny.

The proceedings would likely be held behind closed doors since Simon is a minor, but an anonymised version of the court decision would still be public. At any point, word could get out about the case, which would quickly be connected to Wille because they were on the video together, and the media would be all over Simon again.

All that considered... Settling out of court for a comfortable sum of money he can use to move on with his life might not be the path of “maximum justice” for Simon, but it is a very understandable choice.

#@scatteredpiecesofme also provided feedback on the first draft - thank you friend!#long post #young royals #young royals meta #young royals analysis #criminal justice in sweden #swedish justice system #swedish law #simon eriksson #august horn #august horn of årnäs #wilhelm young royals #crown prince wilhelm

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aronarchy · 2 years ago

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Why we don’t like it when children hit us back

To all the children who have ever been told to “respect” someone that hated them.

March 21, 2023

Even those of us that are disturbed by the thought of how widespread corporal punishment still is in all ranks of society are uncomfortable at the idea of a child defending themself using violence against their oppressors and abusers. A child who hits back proves that the adults “were right all along,” that their violence was justified. Even as they would cheer an adult victim for defending themself fiercely.

Even those “child rights advocates” imagine the right child victim as one who takes it without ever stopping to love “its” owners. Tear-stained and afraid, the child is too innocent to be hit in a guilt-free manner. No one likes to imagine the Brat as Victim—the child who does, according to adultist logic, deserve being hit, because they follow their desires, because they walk the world with their head high, because they talk back, because they are loud, because they are unapologetically here, and resistant to being cast in the role of guest of a world that is just not made for them.

If we are against corporal punishment, the brat is our gotcha, the proof that it is actually not that much of an injustice. The brat unsettles us, so much that the “bad seed” is a stock character in horror, a genre that is much permeated by the adult gaze (defined as “the way children are viewed, represented and portrayed by adults; and finally society’s conception of children and the way this is perpetuated within institutions, and inherent in all interactions with children”), where the adult fear for the subversion of the structures that keep children under control is very much represented.

It might be very well true that the Brat has something unnatural and sinister about them in this world, as they are at constant war with everything that has ever been created, since everything that has been created has been built with the purpose of subjugating them. This is why it feels unnatural to watch a child hitting back instead of cowering. We feel like it’s not right. We feel like history is staring back at us, and all the horror we felt at any rebel and wayward child who has ever lived, we are feeling right now for that reject of the construct of “childhood innocence.” The child who hits back is at such clash with our construction of childhood because we defined violence in all of its forms as the province of the adult, especially the adult in authority.

The adult has an explicit sanction by the state to do violence to the child, while the child has both a social and legal prohibition to even think of defending themself with their fists. Legislation such as “parent-child tort immunity” makes this clear. The adult’s designed place is as the one who hits, and has a right and even an encouragement to do so, the one who acts, as the person. The child’s designed place is as the one who gets hit, and has an obligation to accept that, as the one who suffers acts, as the object. When a child forcibly breaks out of their place, they are reversing the supposed “natural order” in a radical way.

This is why, for the youth liberationist, there should be nothing more beautiful to witness that the child who snaps. We have an unique horror for parricide, and a terrible indifference at the 450 children murdered every year by their parents in just the USA, without even mentioning all the indirect suicides caused by parental abuse. As a Psychology Today article about so-called “parricide” puts it:

Unlike adults who kill their parents, teenagers become parricide offenders when conditions in the home are intolerable but their alternatives are limited. Unlike adults, kids cannot simply leave. The law has made it a crime for young people to run away. Juveniles who commit parricide usually do consider running away, but many do not know any place where they can seek refuge. Those who do run are generally picked up and returned home, or go back on their own: Surviving on the streets is hardly a realistic alternative for youths with meager financial resources, limited education, and few skills.

By far, the severely abused child is the most frequently encountered type of offender. According to Paul Mones, a Los Angeles attorney who specializes in defending adolescent parricide offenders, more than 90 percent have been abused by their parents. In-depth portraits of such youths have frequently shown that they killed because they could no longer tolerate conditions at home. These children were psychologically abused by one or both parents and often suffered physical, sexual, and verbal abuse as well—and witnessed it given to others in the household. They did not typically have histories of severe mental illness or of serious and extensive delinquent behavior. They were not criminally sophisticated. For them, the killings represented an act of desperation—the only way out of a family situation they could no longer endure.

- Heide, Why Kids Kill Parents, 1992.

Despite these being the most frequent conditions of “parricide,” it still brings unique disgust to think about it for most people. The sympathy extended to murdering parents is never extended even to the most desperate child, who chose to kill to not be killed. They chose to stop enduring silently, and that was their greatest crime; that is the crime of the child who hits back. Hell, children aren’t even supposed to talk back. They are not supposed to be anything but grateful for the miserable pieces of space that adults carve out in a world hostile to children for them to live following adult rules. It isn’t rare for children to notice the adult monopoly on violence and force when they interact with figures like teachers, and the way they use words like “respect.” In fact, this social dynamic has been noticed quite often:

Sometimes people use “respect” to mean “treating someone like a person” and sometimes they use “respect” to mean “treating someone like an authority” and sometimes people who are used to being treated like an authority say “if you won’t respect me I won’t respect you” and they mean “if you won’t treat me like an authority I won’t treat you like a person” and they think they’re being fair but they aren’t, and it’s not okay.

(https://soycrates.tumblr.com/post/115633137923/stimmyabby-sometimes-people-use-respect-to-mean)

But it has received almost no condemnation in the public eye. No voices have raised to contrast the adult monopoly on violence towards child bodies and child minds. No voices have raised to praise the child who hits back. Because they do deserve praise. Because the child who sets their foot down and says this belongs to me, even when it’s something like their own body that they are claiming, is committing one of the most serious crimes against adult society, who wants them dispossessed.

Sources:

“The Adult Gaze: a tool of control and oppression,” https://livingwithoutschool.com/2021/07/29/the-adult-gaze-a-tool-of-control-and-oppression

“Filicide,” https://en.wikipedia.org/wiki/Filicide

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