Supreme Court of Finland rules a romantic relationship between an adult and a child a mitigating circumstance
Lauantai 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
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.