The 'Snippa' Case

The 'Snippa' Case

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Published Nov 24, 2023
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The acquittal that created an uproar in Sweden

[ID: Image in grey, green, white colours. A young girl is standing with her back to the viewer. To her left, text reads: “The 'Snippa' Case - The acquittal that created an uproar in Sweden”]

Last week, Sweden’s Supreme Court decided to send back a highly controversial case to the Court of Appeal. They found that a miscarriage of justice occurred when the Court of Appeal overturned a child rape conviction without considering a lower-grade charge of grave child sexual assault.

 

The Supreme Court was, however, not tasked to address the issue that sparked the most controversy in Sweden; an issue that raises concerns of potential child and gender discrimination.

 

This comment discusses a case involving child sexual abuse

 

In September 2022, the Halmstad District Court found a man in his 50s guilty of raping a 10-year-old girl back in June 2021 and sentenced him to three years in jail under Chapter 6, Section 4 of the Swedish Criminal Code. The section under which he was found guilty was amended in 2022 and thus an earlier version applies to this case.

 

On appeal in February 2023, the Court of Appeal for Western Sweden quashed the conviction because they were unsure about a word the girl had used for her genitalia. As per the decision, it was proven beyond reasonable doubt that the man had committed the actions described in the Statement of Facts. However, a majority of the judges found that it was unclear what the girl meant by the word ‘snippa’, which was the term she had used throughout her video interviews to describe the part of her body that had allegedly been violated. It was also the word used in the Statement of Facts. They were, therefore, not satisfied beyond reasonable doubt that an offence under Ch. 6 S. 4 had been committed.

 

To fully understand why people reacted so strongly to the Court of Appeal’s findings, some context is needed. Since the 2000s, the word ‘snippa’ has been used in Sweden by people working with children to give children a neutral and age-appropriate word for the female genitalia, free of shame and ambiguity. An important step both from a children’s rights, female health, and gender equality perspective. Up until then, the Swedish language had lacked a precise, neutral, colloquial term for the female genitalia that could be used in conversations with and among children. Whereas it was easy to know what word to use for a boy’s genitalia (‘snopp’), the historical shaming and silencing of the of female genitalia had left the Swedish language with a lexical gap. This was now actively being addressed.

 

The Swedish Association for Sexuality Education (RFSU) formally adopted the term at their annual congress in 2003, and thus said that this was now the agreed term to use in all RFSU material directed towards a certain age group. Only a few years later, it entered the Swedish Academy Glossary (SAOL) – which is the ultimate go-to resource for Swedish spelling. For a word to be included in SAOL, it must be used by many people and preferably throughout the country. Later, ‘snippa’ also entered the Contemporary Dictionary of the Swedish Academy (SO) – which is the ultimate go-to resource to know the definition and use of a Swedish word. For a word or expression to be included in SO, it must appear many times in modern texts and preferably in different types of text material. The different ways the SOAL and SO adopt words may explain why the two resources did not use an identical definition for ‘snippa’. Whereas SOAL said it was ‘the female genitalia’, SO defined it as ‘the female external genitalia’. A minor difference that ended up having huge consequences.

 

The Court of Appeal that overturned the conviction consisted of one 30-year-old female judge (legal junior judge) and four male judges (two legal and two lay judges) with an average age of 66. The female judge wanted to uphold the conviction, as she did not find anything unclear about the word, nor how the girl had used it. It means ‘female genitalia’, which includes external as well as internal genitalia. The female judge found it evident that the girl meant her vagina when she said 'snippa'. The girl had also explained what she meant by indicating with her hands and explained through words, by saying ‘inside’ and ‘deep inside’ when describing the assault. According to the District Court judgement, the mother to the girl said in her witness testimony that her daughter had told her about the assault soon after; the mother used the term ‘vagina’ to explain what part of the body her daughter had said had been violated. It appears that the male judges largely ignored this, saying that the term was unclear and that the girl failed to explain what she meant by ‘snippa’. The judges turned to the SO for a clear definition. It said ‘female external genitalia’.

The majority of the Court of Appeal judges thus inferred ‘snippa’ to mean ‘female external genitalia’. By applying this definition, the Court found that the girl had not described an incident that could amount to rape under the Criminal Code. In her dissenting opinion, the woman judge noted that the fact that “[the girl] consistently used the word ‘snippa’ as a term for her entire genitalia and was unable to express in adult words that it was a matter of penetration appeared natural in light of her age”. The alternative offence of sexual assault against a child was not considered by the Court. Consequently, the man was acquitted.

 

Following the Court of Appeal ruling, the distressed mother of the girl told Swedish news media that the girl had been taught that this was the right word to use when referring to her genitalia, including her vagina. By her parents. By her teachers. By children’s programmes aired on public service TV. But by using the correct term for her genitalia, the judges found that it rendered her video testimony unclear (for the sake of justice, a young girl should apparently better learn how to speak like a man born more than half a century before her).

 

When the news broke of the man’s acquittal, Swedes took to the streets in anger over the Court of Appeal’s reasoning, saying how normal and unambiguous the term is among those it is meant for. Several civil society organisations specialised in human rights and children’s well-being – some of whom had promoted the use of the term – issued public statements criticising the Court of Appeal for failing to serve justice and calling on the Prosecutor General to file an application for leave to appeal to the Supreme Court.

 

While the use of a dictionary is questionable from the beginning, I want to briefly comment on the 'snippa' definition provided by the SO from a child and gender perspective. Different from most words, this word did not develop organically. It was actively promoted with a clear definition in mind to fill a lexical gap. As mentioned earlier, a word is considered for inclusion in the SO depending on its frequency in modern text, i.e. written language. Also, for the text to enter the language database, from which SO derives its words, it seems reasonable to assume that the text must exist in some formalised way. For these reasons, the likelihood is high that the majority of the data that informed the SO definition is adult-adult communication, and not adult-child, child-child, or child-adult. This in turn would imply a higher risk of the term being used differently than intended. I admit this is speculation, as I do not know the inner workings of the language database and it has been impossible for me to find more details about it.

 

In terms of the gender perspective, I would argue that there is a higher risk that those who have not been taught the word ‘snippa’ but merely heard it at an infrequent basis among adults would use it more narrowly to only include the external parts. And this is due to the gendered nature of the word. As mentioned earlier, ‘snippa’ was introduced as the female equivalent to ‘snopp’. Considering that the male genitalia are largely an external business, it does not seem too far fetched to believe that many adults use the word ‘snippa’ to only describe external parts. Especially not when history has taught us to define women against a male norm. According to this logic, it is problematic how words find their definition in the SO more generally. Again, this is speculation as I do not have access to data to back it up. Regardless, as I am not a linguist, let alone a sociolinguist, I will leave it up to the experts to elaborate on this point.

 

Worth noting, one of the people behind the latest edition of the SO have expressed frustration over the Court of Appeal’s use of the SO to settle the case before them, saying it should not and cannot be used in legal contexts. She also told news media that they acknowledge that it is problematic that the definitions in the SAOL and the SO differ and that they will revisit the definition in the SO to assess whether it should be changed.

 

From a legal point of view, the question is less about what the SO says and more about whether resorting to a dictionary in the first place is the correct legal way to go about it. Several lawyers specialised in Swedish criminal and procedural law have raised this issue along with the failure of the Court to consider a lower-grade charge when the proven facts clearly indicated that the accused could most likely have been found guilty of grave sexual assault against a child.

 

In the application for leave to appeal to the Supreme Court (SC), the Prosecutor General asked the Supreme Court to reverse the decision and remand the case to the Court of Appeal for further proceedings due to gross miscarriage of justice, saying that the accused should be tried for two counts of rape of a child, alternatively sexual assault against a child. The Prosecutor General puts forward three questions regarding the following:

 

  1. Under the Court’s procedural powers (‘materiell processledning’ in Swedish), what obligation does the Court have to seek clarity if it finds a word or phrase presented in the Statement of Facts to be unclear?

  2. Under the Court’s procedural powers, what obligation does the Court have to raise the issue of alternative charges applicable within the scope of the Statement of Facts?

  3. Within the scope of the Court’s procedural powers and having regard to the UN Convention on the Rights of the Child (which was incorporated into Swedish law in 2020), what obligation does the Court have in cases involving crimes against children to take steps to clarify what the child means by words or phrases whose meaning is unclear to the Court – and which guidelines, with regard to the Court's impartiality, should apply to such a situation?

 

The Supreme Court only granted leave to appeal in part. Specifically, it was regarding whether the Court of Appeal neglected its duty to raise the issue of alternative charges with the parties. In other words, the Supreme Court was not going to address the question of whether the Court of Appeal’s reliance on a dictionary to understand what the girl was trying to explain amounted to miscarriage of justice, let alone clarify how the UN Convention on the Rights of the Child applies to criminal proceedings involving child victims.

 

Last week, the Supreme Court handed down its decision, reversing the Court of Appeal’s decision and remanded the case for further proceedings. As mentioned above, the Supreme Court ruled only on the question of alternative charges, finding that the Court of Appeal's failure constituted a miscarriage of justice. Thus, the Supreme Court instructed the Court of Appeal to vacate the original judgement and retry the case regarding this particular question.

 

Keeping in mind that I am no expert on Swedish criminal or procedural law, I do find it extremely interesting to see how the Court of Appeal will read the decision by the Supreme Court as I think it is somewhat unclear whether the rape charge is fully out of the picture. Although the Supreme Court did not grant leave to appeal beyond the question of alternative charges, it – nevertheless – did make a short comment on the remit of the Court’s obligation to seek clarity if it finds something in the Statement of Facts to be unclear, cf. paras. 12-14. Roughly translated, the Supreme Court says:

 

"The Court is responsible for ensuring that the case is handled efficiently and in compliance with the rule of law. The Statement of Facts must appear clear and complete to the Court. If it is not the case, the Court should exercise its procedural powers to ensure this.

 

Whether it is appropriate for the Court to exercise such powers, and how they are to be exercised, must depend on the circumstances of the individual case and must, to a large degree, be left to the Court to determine. In general, the Court must however be careful in exercising its procedural powers thus to ensure its impartiality remains unquestioned. It is generally accepted that, in principle, the Court’s impartiality is much less at risk of being questioned when the Court exercises its procedural powers in favour of the defendant vis-à-vis the prosecutor.

 

On the contrary, it is not the Court’s job to take any investigatory steps into the facts alleged in the Statement of Facts. The Court shall not investigate crimes but rely on the material presented by the parties. It is the parties who are in charge of ensuring that the investigation into the question of guilt is complete and that relevant evidence is presented to the Court. In other words, the Court’s approach to any shortcomings in the investigation must therefore be that these ultimately fall back on the prosecutor and can lead to the accused being acquitted of the charge."

 

Although the Supreme Court was not going to decide whether the Court of Appeal erred when resorting to a dictionary (cf. question 1 by the Prosecutor General), it apparently felt a need to make a general comment on what the law says without assessing how it applies to this specific case. Nevertheless, these paragraphs make the decision the more interesting. In short, the Supreme Court mentions a positive obligation regarding the Statement of Facts (the Court’s duty to take appropriate steps by reaching out to the parties to ensure clarity) and a negative obligation regarding the investigation (the Court’s duty to refrain from introducing new material on its own initiative).

 

It is certainly possible to infer that the Court of Appeal failed on the latter, as the dictionary was not introduced by any of the parties. Regardless of the grotesqueness of turning to dictionary to understand what a victim is trying to say, it was wrong from the get-go to give it any consideration as it was not presented as evidence by any of the parties. Whether they failed in terms of their positive obligation is more difficult to say. Here it is important to remember that the word ‘snippa’ was not only used by the girl but was the term used throughout the Statement of Facts. Consequently, it seems reasonable to conclude that the judges found the Statement of Facts to be unclear as well. However, the Supreme Court says in their decision that whether it is appropriate for the Court to exercise its procedural powers in a specific case must largely be up to the Court to determine in light of the circumstances and the principle of impartiality. Thus, it would fall within the Court’s discretion to determine. It must be stressed that the procedural powers entail reaching out to the parties for clarity, not a dictionary. Side note, I struggle to understand how the Court can accept a Statement of Facts that it considers do not support the charge listed in the indictment at all (if a ‘snippa’ violation can never amount to rape, there is an obvious conflict between the Statement of Facts and the indictment).

 

Regardless, the Supreme Court did not rule on the matter when they reversed the decision by the Court of Appeal. If the Supreme Court decision is to be read as only a quashing of the Court of Appeal judgement insofar the Court failed to consider alternative charges, this issue has been settled and will not be brought up by the Court of Appeal again. It is worth noting that the Supreme Court was legally bound to rely on the Court of Appeal’s definition of ‘snippa’ when deciding on the issue of alternative charges. So now when the Court of Appeal is going to hear the case again, it does seem like the Court is bound to apply this definition and only consider the alternative charge of sexual assault.

 

A new panel of judges will preside over the case upon its return to the Court of Appeal. Assuming that the Court is bound by the facts established by the previous Court of Appeal ruling and not reversed by the Supreme Court, the judges must apply the “wrong” ‘snippa’ definition regardless of what they know to be the right definition and used accordingly by the girl in her video interviews. This does create a paradox. If they are not bound by it and the new group of judges do not find anything ambiguous or unclear about the term and how it is used in the Statement of Facts and by the girl, it could be argued that they would have to revisit the rape charge. However, this would raise a serious issue of ensuring a fair trial. In light of the massive outcry after the first Court of Appeal ruling, it is difficult to imagine anyone in Sweden who does not know what the term ‘snippa’ means today. Those in doubt before are no longer in doubt. Thus, it seems like a catch 22 for true justice to happen. The case being remitted to the Court of Appeal to include the alternative charge of two counts of grave sexual assault against a child in the indictment marks a significant, albeit modest, triumph. It is my sincere hope that the girl and her family have not endured this additional stress in vain.

 

I guess the two key takeaways here are:

➤ Diversity among judges is important if we want to strive for the highest level of justice

➤ More must be done to ensure that children’s rights are effectively protected in the justice system – through an intersectional lens, including disability (according to court documents, the girl in this case has ADHD as well as autism)

Image credit: created in Canva, using Canva stock photo

 

Sources (all in Swedish):

 

Further reading:

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