Supreme Court of Finland rules a romantic relationship between an adult and a child a mitigating circumstanceLauantai 26.12.2020 klo 2.34 - Johannes Remy In November 2020, the Supreme Court of Finland made a precedent ruling in a case of child sexual abuse: https://korkeinoikeus.fi/fi/index/ennakkopaatokset/kko202085.html (in Finnish). At the time when the crime was committed, the defendant was 29 years of age and his victim a 14-15 -year-old girl. The Court found it a mitigating circumstance that the defendant did not just have sex with the victim but had with her a romantic relation which lasted five months. That is why the Court changed the classification of the offence: while the court of first instance found the defendant guilty of aggravated sexual abuse of a child, the Supreme Court deemed the crime only a “regular” sexual abuse of a child. The Supreme Court sentenced the defendant to one year and four months of conditional imprisonment. The all-male Supreme Court accepted the ruling by three votes against two: judges Jukka Sippo, Pekka Koponen and Mika Huovila supported it, while Tuomo Antila and Mika Välimaa opposed it, proposing instead to maintain the classification of the offence as aggravated sexual abuse of the child.
The ruling has evoked attention in Finland. In Finland, any criticism of the authorities is not customary, and the news media has reported the ruling mainly in a neutral tone. The bewilderment about the ruling is, at most, implied. The news media has concentrated in the details of the crime, without paying attention to the legal background which facilitated the strange sentence. The offender and his victim met each other on a dating site for adults where the girl claimed to be 19. Later, the offender met the victim’s mother, from who he learned about the girl’s real age, but all the same continued the relationship. The victim’s mother accepted the relationship. The offender did not use a condom, and the relationship resulted in victim’s pregnancy at the age of 15. The child was born already after the end of the relationship. How did the Supreme Court of Finland pass so strange and even inappropriate sentence? While there are grounds to criticize the judges who formed the majority, the broader view on the legal background reduces their responsibility. There are wider problems in the general preparation of bills for the Finnish parliament, politicians’ insufficient textual criticism of bills, and excessive trust in the civil servants of the Ministry of Justice who write the bills.
On the first glance, the Finnish criminal code seems unequivocal: intercourse with a minor makes sexual abuse of a child an aggravated case (Criminal Code chapter 20, section 7). However, the law then also stipulates an additional condition for the crime to be aggravated: “and the offence is aggravated also when assessed as a whole.” An additional important clause is in Chapter 20, section 7a: “An act that does not violate the sexual self-determination of the subject and where there is no great difference in the mental and physical maturity of the parties shall not be deemed sexual abuse of a child, or the aggravated sexual abuse of a child referred to in section 7, subsection 1, paragraph 1.” This restrictive clause was enacted to protect the relationships between the young. The law itself does not define what must be considered in the assessment of an offense as aggravated as a whole. It also does not tell, exactly how the restriction enacted in the section 7a must be applied. The answers to these questions are to be found in the explanatory statements of the government bills for the relevant laws. The explanatory statements, too, are used as a source of law, because it is thought that they reveal the parliament’s intention how the law should be interpreted and applied. The parliamentary committees’ decisions are an additional similar source for the application of laws. An additional source of law are the precedents of court rulings, like the one I am now writing about. In this case, the Supreme Court of Finland referred to the explanatory statement of the Government Bill 282/2010 (in Finnish). The statement is 169 pages long, and we can safely assume that very few MPs read it from its beginning to the end, especially because several other bills of similar length were being discussed at the same time. In its decision, the Supreme Court refers to the explanatory statement’s page 105 where it is stated: “For instance, the relationship between the offender and the child, the differences in their ages and the child’s age and level of development may impact on the assessment [of whether the offense is aggravated as a whole]. For instance, the act could be deemed a regular [sexual] abuse [of a child] instead of its classification as aggravated, if between the offender and the child there is a relationship which does not satisfy the conditions stipulated in the restrictive provision of the Section 7a. https://www.eduskunta.fi/FI/vaski/HallituksenEsitys/Documents/he_282+2010.pdf (in Finnish). What does this mean in practice? It means that courts may deem a mitigating circumstance a relationship in which there is a great difference in the mental and physical maturity of the parties, or which violates the sexual self-determination of the subject. In other words, an adult’s romantic relationship with a child is a mitigating circumstance. By passing this bill, the Finnish parliament undermined or even nullified the explicit clause of the law which stipulates that intercourse with a minor under 16 years of age must always be considered a case of aggravated child sexual abuse. To be sure, hardly any MPs acted knowingly when they did this. The real responsibility lays with the anonymous civil servants in the Ministry of Justice who wrote the page 105. In this case, they are the real law-makers. This is something which is extremely unlikely to be admitted in Finland, even though the precedent ruling of the Supreme Court of Finland now proves it beyond reasonable doubt. This is the reason why I write this in English. The Supreme Court’s precedent ruling and the government bill on which it is based must gain the international attention which they fully deserve. I will be deeply grateful to everyone who shares this blog text or otherwise disseminates information about the Supreme Courts’ precedent ruling outside Finland. Children in Finland need your help. As it happens, I have written about this bill and the very same sentence on its page 105 to which the Supreme Court refers in my previous blog text in Finnish, published on February 19, 2019. I called attention to what it means. Although I say this myself, now the Supreme Court of Finland has proven me right. On the constructive side, the question is: what should be done to remove this manifest injustice? Technically, it is straightforward: it is enough to remove from the law just one single sentence: “and the offence is aggravated also when assessed as a whole.” Another matter is that it may be difficult to find the political will to enact such a reform. This is not because the Finnish politicians would be friends of child-abusers, most of them are not, but because they are not accustomed to disagree with the civil servants. |
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Kommentoi kirjoitusta. Avainsanat: Supreme Court of Finland, Child sexual abuse, Finland, lapsen seksuaalinen hyväksikäyttö, Korkein Oikeus, lainvalmistelu, Oikeusministeriö, Jukka Sippo, Pekka Koponen, Mika Huovila |
Finland sentenced in the European Court of Human Rights in 2012: pediatrist locked up in a mental hospital under suspicious circumstancesTiistai 4.6.2019 klo 6.57 - Johannes Remy In 2012, European Court of Human Rights sentenced Finland for forcing involuntary treatment on a patient on the basis of only one medical doctor’s assessment. This was how the case was broadcasted in short form in Finnish media which bypassed the case’s connection to suspected child sexual abuse. That connection is manifest in the ECHR’s sentence in Case of X v. Finland, 03/07/12 which can be read under this link: http://hudoc.echr.coe.int/eng?i=001-111938
In June 2000, a seven-year girl was taken into public care because of her mother’s mental health problems and was placed in a family support centre. From the ECHR’s sentence, it seems that the mother was found not in good mental health because she suspected that her daughter was being sexually abused. However, the mother still had access to her daughter who regularly visited her. The girl also visited her father. In December 2000 the mother brought the girl to a pediatrist’s practice, suspecting that the girl’s father was sexually abusing her during the visits. According to the mother, the girl had indicated to her mother that she was unwilling to go to her father’s home for the Christmas holidays. The pediatrist found that there were rational grounds for the mother’s suspicion. After leaving the pediatrist’s practice, the mother neither took her daughter to the father nor returned her to the support centre which was closed for the holidays. She kept the girl with herself for four months until the authorities found them in April 2001. The mother was later sentenced for child abduction.
Shortly before the authorities caught the mother, also the pediatrist was arrested as a suspect in deprivation of the girl’s liberty, or of aiding and abetting such deprivation. The crime was suspected to have begun ten days before the mother brought the girl to her practice. The pediatrist’s home and practice were searched, and she remained in custody for one week at that time. The pediatrist denied that she had in any way had an impact on the mother’s actions: she had only provided medical treatment for the girl. She also stated that it had not been shown that the suspicions of sexual abuse were unfounded.
Even before her trial, the pediatrist unsuccessfully made an application to the Office of the Prosecutor General (valtakunnansyyttäjä, högsta åklagaren), requesting that the public prosecutor be replaced by an impartial one and alleging several irregularities in the performance of his duties. In August 2002 the District Court appointed a public defender to represent the pediatrist against her will. The pediatrist contested the appointment of Ms M.K. in a written representation which the Court of Appeal rejected.
The trial was held in October 2002. Against the expressed wish of the pediatrist, it was held in camera. The court rejected as irrelevant a request by the pediatrist that the girl, Mr J.R. [not me, I had nothing to do with this case], a police inspector and two lawyers be heard as witnesses regarding the alleged deprivation of liberty and, according to the pediatrist, misinterpretation of the facts by the public prosecutor, which she described as criminal. The pediatrist stated that the witnesses should testify about the background to the offence with which she was charged. The District Court also rejected that request, noting that she had not given any reasons which would have justified hearing the witnesses she proposed.
The court ordered the pediatrist and the girl’s mother to undergo a psychiatric assessment and adjourned the case. Niuvanniemi (mental) Hospital informed the pediatrist that it was ready to receive her in January 2003 for assessment, but she failed to appear there and went into hiding. However, she maintained contact with the court through her new lawyer, chosen by herself. She was finally caught in October 2004 and kept in custody. Because her lawyer wanted to withdraw from the case, the court again appointed for her a new public defender whom she herself did not want and she again unsuccessfully protested against the nomination. In November 2004 the pediatrist was taken to Vanha Vaasa (mental) Hospital for psychiatric assessment. A doctor at the hospital found that the pediatrist was suffering from a delusional disorder and had not been criminally responsible at the time of the alleged offence. Dr A.K. also found that the criteria for involuntary confinement were met and that the pediatrist could not be heard at the trial. Her capacity to look after her own interests was diminished by her mental illness, and she was thus in need of a guardian for the criminal proceedings. According to the doctor, the pediatrist had observed indications of sexual abuse which other experts had not been able to detect. In conclusion, Dr A.K. considered that the applicant was paranoid and that she had made accusations against various authorities about continued abuse of office. Moreover, she was in denial of her illness.
The pediatrist questioned the psychiatric assessment’s impartiality and demanded an additional assessment. In this context, she presented a divergent opinion of another doctor. Her demand was not granted. In February 2005, the pediatrist was officially released. However, by the decision of National Forensic Medical Authority, she remained in the hospital undergoing involuntary treatment. She considered that she was not in need of mental health treatment, and wished to obtain a second opinion on her need for treatment. However, at the beginning of February 2005 the hospital refused to allow a Dr M-P.H. to visit her during the ongoing psychiatric assessment. The pediatrist remained in the mental hospital until late January 2006.
Forensic Psychiatry Board found that the applicant’s capacity to look after her own interests in the criminal proceedings was reduced by her mental illness and that she was therefore in need of a guardian. The pediatrist contested this, arguing that she was well, to no avail: the court appointed a guardian for her. In April 2005, the District Court found the girl’s mother guilty of serious deprivation of the girl’s liberty. The pediatrist was found guilty of aiding and abetting this crime. However, the court did not pass sentence on them as they were not deemed responsible for their actions, due to their mental illness. However, it ordered them to pay damages and legal costs. In the trial, the pediatrist's guardian did not support her demand for hearing eighteen witnesses. Unlike the pediatrist herself, the guardian did not find it necessary to question the psychiatric assessment's conclusions. The guardian announced that she was satisfied with the District Court's decision.
Because the pediatrist refused to take antipsychotic medicine during her involuntary treatment, it was forcibly administered to her as injections. She was released from the hospital only when two doctors who visited the hospital gave their statements regarding her treatment. One of them was a general practitioner who noted that the pediatrist was lucid and well-orientated. During their conversation he had not observed any signs of psychosis or delusion. This doctor considered that the conditions for involuntary treatment were not met. The other visiting doctor was a psychiatrist who found that
“…the choice of medication for the applicant (37.5 milligrams of Risperdal Consta injected into the muscle every two weeks) seemed excessive, given the patient’s age and state of health. Furthermore, he considered that the involuntary and forced medication fulfilled the constitutive elements of assault. In conclusion, he considered that open-care measures were possible and that the danger posed by the applicant to herself and others had been considerably exaggerated, and accordingly that the criteria for involuntary care were not met.” European Court of Human Rights did not sentence Finland for forcing a guardian on the pediatrist or not hearing the eighteen witnesses. This was because the guardian was appointed according to a doctor’s assessment and because the guardian did not find it necessary to hear the witnesses. However, ECHR found that Finland had violated the pediatrist’s rights in that her involuntary treatment was continued for more than six months on the basis of only one doctor’s assessment, and in the forcible administration of medication by injections. The court ordered Finland to pay her a compensation of 18 000 euros.
The ECHR’s sentence did not create a scandal in Finland. It did not lead to any re-examination of the case, and the pediatrist was not granted a retrial. The girl’s father gained sole custody over her. Of course, this is an old case. However, it is unlikely that this kind of problems disappear by being actively ignored. |
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Kommentoi kirjoitusta. Avainsanat: Child sexual abuse, human rights |
Does Finland have two limits of the age of consent?Perjantai 10.5.2019 klo 8.23 - Johannes Remy On December 15, 2016, the European Court of Human Rights found that Finland had violated freedom of speech of a mother who attempted to protect her child from sexual abuse. The sentence can be read here: http://hudoc.echr.coe.int/eng?i=001-169522 My blog text is based on the sentence.
Finnish media have not reported this sentence. Finland sentenced the mother for defamation, because she told to authorities about her concern that the father might abuse their somewhat less than three-year old daughter. The mother feared that this might happen during the visits which were based on the father’s contact rights. The case merits attention, because the ECHR’s sentence indicates the existence of several systemic flaws in the protection of children from child abuse in Finland. Child sexual abuse may be left uninvestigated because the victim is younger than four years of age. The legal age of consent in Finland is sixteen years. Does the administrative practice establish also another, lower age limit? Does the law protect only children between 4 and 15 years of age? Furthermore, once the first civil servants committed a mistake, the whole administrative machinery protected them. A daughter was born to a Finnish couple in November 2004. In the spring of 2006 the mother observed that the child’s father was behaving strangely with the child and that the child did not want to stay at home alone with her father. She also started to fear for her own and her child’s safety as the father was, in her view, violent. Fearing for her child’s safety, the mother in May 2006 together with the child moved away from the father. In August 2006 the Kouvola District Court gave an interim decision that the father was to meet his daughter for two hours every other weekend under supervision. In June 2007 the same court gave another interim decision according to which the father had a right to meet with his daughter for 2 to 4 hours at a time without supervision. The child was at that time about two and a half years old. On 4 September 2007 the court gave both parents joint custody of the child. She was to live with her mother and to meet her father every other weekend from Friday to Sunday and during the holidays, unsupervised. According to the mother, after the third unsupervised visit with the father in August 2007, the daughter’s behaviour changed radically and she was showing strong symptoms. She was using vulgar language and was restless and anxious. The child had told her mother about things that her father did to her. The mother contacted the child welfare authorities in Helsinki reporting her suspicions of sexual abuse. Thirteen days after the mother’s report, the child welfare authorities reported the case to the Helsinki Police Department. The pre-trial investigation began one week after the welfare authorities’ report that is 20 days after the mother’s initial report to the child welfare authorities. Both parents were questioned. Sixteen days after the child welfare authorities’ report that is 29 days after the mother’s initial report, the Police Department requested assistance from the Forensic Child and Adolescent Psychiatry Centre in Helsinki. The child was then two years and ten months old. 35 days after the mother’s initial report to the authorities, a physiological examination was carried out to determine whether the child showed any signs or symptoms of the alleged abuse, but no such external signs were revealed. This is not surprising, because it is rare to find such signs more than one week after the abuse. The Forensic Child and Adolescent Psychiatry Centre refused to interview the child or conduct a psychological examination. Here, I find it best to quote the ECHR’s sentence in verbatim, in order not to be suspected of twisting the matter: “The Centre replied that children under three years old could not be interviewed within the forensic-psychological interview framework as it was not possible to obtain reliable information on possible sexual abuse from children under three years of age, especially in situations involving custody disputes. Such interviews became effective only in respect of children aged four years or more.”
The above quotation reveals two relevant matters: 1. The Forensic Child and Adolescent Psychiatry Centre refused to investigate the matter referring to its own rule, according to which children less than four years of age are not examined; 2. the Centre presented the ongoing custody dispute as an additional argument to back its refusal. This might perhaps be an argument in the final proceedings at a court of law, but as an argument for refusal to investigate a crime, it is strange. Of course, the suspect is not guilty until found guilty, but if this is a valid cause not to investigate a crime, then no crimes can ever be investigated.
The Helsinki Police Department closed the pre-trial investigation on 15 October 2007 as it found no appearance of any crime. Four days after that, the mother in a telephone conversation expressed to a social worker her fear that her child continued to be at risk of being subjected to sexual abuse when meeting her father and insisted on another investigation. She was concerned that the pre-trial investigation by the police had not been complete. As a concerned party, the suspected father later gained access to all documents of the case, including the social worker’s notes of this telephone conversation. He filed a report for defamation against the mother. In September 2009 the Helsinki District Court convicted the mother of defamation and sentenced her to pay a fine of 630 euros. She was ordered to pay the father 1,000 euros in non‑pecuniary compensation and his costs and expenses. Again, I quote verbatim the District Court’s sentence: “When assessing whether one is guilty of defamation, it is irrelevant that the act has been committed by pursuing an earlier report to child welfare authorities and that it has been made to a public official who is bound by confidentiality. Even in a child welfare report one must not give untruthful and smearing information or insinuations about others. M.P. must have understood that the insinuation was of such a kind that in any event it would come to the knowledge of [the child’s father] and that its content, being almost of the worst kind, was bound to cause him suffering.”
This when the police had never seen the child, no psychological examination of the child had been conducted, and the authorities had merely ignored the information provided by the mother. She appealed against the judgment of the District Court to the Helsinki Appeal Court (Hovioikeus) which however upheld the Disctrict Court’s sentence.
In March 2010 the father of the child requested the Helsinki District Court to order that the child live with him, and in January 2011 the court ordered that the child was to live with her father in Kouvola. To be sure, the mother retained a shared custody of the child. In February 2008 the mother lodged a complaint with the National Authority for Medico-legal Affairs (Terveydenhuollon oikeusturvakeskus) about the fact that the child had not been heard at all during the pre-trial investigation in autumn 2007. The case was transferred ex officio to the regional State Provincial Office (lääninhallitus). In November 2008 the regional State Provincial Office found that there was no minimum age for hearing a child and that the three-year age‑limit for child psychiatric interviews was only a recommendation. Here, noteworthy is the difference between the Forensic Child and Adolescent Psychiatry Centre and the State Provincial Office: the first relied on an unconditional rule not to investigate children younger than four years, while the latter spoke about a recommendation regarding children younger than three years. The Provincial Office decided to take no action in the case.
In February 2008 the mother also lodged a complaint with the Parliamentary Ombudsman, asking him to investigate why the police did not hear her child during the pre-trial investigation. In April 2008 the Parliamentary Ombudsman decided not to take any measures. He found that he did not have competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals.
The mother also asked the Ministry of the Interior to investigate whether the decision not to hear the child was acceptable. The Ministry of the Interior transferred the matter to the National Police Board. In August 2012 the National Police Board found that police conduct in the matter had been appropriate. The police had conducted an adequate pre-trial investigation without leaving any issues unclarified.
The mother did not gain any justice in Finland, and only some at the European Court of Human Rights. The ECHR found that Finland had violated her freedom of speech and obligated the state to pay her a monetary compensation. However, to this day Finland has not overturned her criminal conviction, Finnish mass media has not deemed the case worth reporting, to say nothing of making the relevant civil servants to face their responsibility.
In Finland, the reported cases of sexual abuse of small children under five years of age lead to conviction substantially more seldom than reported abuse of older children. The ECHR’s sentence reveals one of the main causes for this phenomenon: the arbitrary rule not to conduct psychological investigation of small children. This flaw must be urgently corrected either by legislation, or new administrative guidelines. It is impermissible that the government protects from crime only children aged 4 to 15. To be sure, it indeed is more difficult to gain information from a very young child than a bigger one. Nevertheless, it is arbitrary to altogether refuse to examine children younger than four, and even more arbitrary to charge the protecting parent of defamation on that basis. What is the truth? When there is a three-year old’s word against the Helsinki Police Department’s word, I am not convinced that the latter is always more trustworthy.
I call attention to a strange slump in the Finnish statistics of the reported cases of sexual abuse of victims younger than five. In 2015, 105 cases were reported to police; in 2016, 98 cases, but in 2017, only 53. A drop of more than 45% in one year evokes questions: are some of the reported cases not registered? Source: Statistics Finland http://pxnet2.stat.fi/PXWeb/pxweb/fi/StatFin/StatFin__oik__rpk__uhri/statfin_rpk_pxt_11cn.px/
The ECHR sentence brings to light two additional relevant flaws in the investigation of child sexual abuse in Finland. First, the investigation often begins with a considerable delay which substantially obstructs it. Second is the unofficial but very real status of the forensic psychological examination as the court of first instance which may stop consideration of all other evidence. What a child speaks to her or his parents or other non-specialists is evidence, too. Of course, it must be carefully and rationally examined, taking into account the child’s age, possible manipulation, misunderstandings, etc. However, it is inappropriate to altogether ignore this evidence. Police should investigate child sexual abuse like it investigates a serious crime against property, actively striving to gain additional evidence. It is manifest that this is not always how child sexual abuse is investigated in Finland.
Since about a decade, I am blogging in Finnish about the insufficient protection of children from sexual abuse in Finland. I have now decided to write also in English. This is because the denial of this problem in Finland is so strong that there may be more hope of awaking my dear country of origin from abroad. My blog has many readers, but so far, it does not evoke activism. If my text and the ECHR’s sentence convinced you and if you find the cause important, please share.
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Kommentoi kirjoitusta. Avainsanat: child sexual abuse, European Court of Human Rights |
Child psychiatrist admonished for irregularities in an investigation of child sexual abuseLauantai 7.1.2012 klo 6.58 - Johannes Remy A text in English on a Finnish child psychiatrist who was admonished for irregularities in an investigation of child sexual abuse. The admonition does not at all seem to have harmed her career. The text contains also information on the Helsinki police. Read the text on my American site: http://www.johannesremy.webs.com For some reason, the site does not let me to create a link, but the address works. You can also use the link below in the Finnish version of this same text. |
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Kommentoi kirjoitusta. Avainsanat: Finland, child sexual abuse, children's rights, Valvira, Helsinki police |
Case of daycare home Hummingbird (Kolibri) and the investigation of child sexual abuse in FinlandSunnuntai 18.9.2011 klo 19.22 - Johannes Remy City of Helsinki has been buying daycare services at a private daycare home Hummingbird. For the parents, this means that they are entitled to the same subsidized rates as they would be in city daycare facility. Hummingbird was recently closed, since its owner is suspected of child sexual abuse under aggravated circumstances. At first, it was announced only that the owner is under criminal investigation, but the public was not informed about what kind of crime was investigated. That is why the parents already organised protests against the closure of Hummingbird. [the text continues under the link "Lue lisää" (=read more)]
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Kommentoi kirjoitusta. Avainsanat: criminal investigations, child sexual abuse, Finland |
