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Sweden: First Sentence for “Forced Marriage” Upheld by Appellate Court

(Nov. 9, 2016) On October 7, 2016, the Scania and Blekinge Court of Appeal upheld a verdict against a father for forcing his daughter to marry against her will while they were on vacation in Afghanistan. (Press Release, Hovrätten har i dag meddelat dom i målet om tvångsäktenskap [The Appellate Court Has Today Issued a Judgment in the Case of Forced Marriage] (Oct. 7, 2016), Case No. B 1903-16 (HovR), on file with author.) It is the first case of forced marriage that has been tried in Sweden.

Criminalized Conduct

 Under the Criminal Code, it is unlawful to plan or compel a marriage against the will of one of the parties. (4 ch. 4c § Brottsbalken (BRB).) The crime is punishable in Sweden regardless of where the marriage takes place. (2 ch, 2 § BRB.)  The provision entered into force on July 1, 2014. (Lag om Ändring iBrottsbalken (SFS 2014:381) [Act Amending the Criminal Code (SFS 2014:381)], NOTISUM.) The provision was part of an overhaul to increase the punishment for forced marriages and protect against child marriages and marriages performed against the will of the parties.  (Proposition [Prop.] 2013/14:208 Stärkt skydd mot tvångsäktenskap och barnäktenskap samt tillträde till Europarådets konvention om våld mot kvinnor [Increased Protection Against Forced Marriages and Child Marriages as well as Accession to the Council of Europe Convention on Violence Against Women] (2014), Swedish Parliament (Sveriges Riksdagen) website.)

Background 

In May of 2015, a young woman was married in Afghanistan against her will, as a result of her having a boyfriend of whom her family did not approve. She had since 2013 been in a relationship with a childhood friend and colleague that the woman’s brother discovered only in January of 2015.  Evidence that the young woman did not want to be married to another man included testimony from counselors as well as emails and text messages to the boyfriend, which showed that she wanted to marry him and not her husband.  (HovR at 7.)

Weighing the totality of the circumstances, the District Court found it proven that the woman had been married in Afghanistan against her will. (District Court Decision, Case No. B 6048-15 (TR), available as addendum 1 to HovR decision, at 33.)  The Appellate Court confirmed that judgment.  (HovR at 10.)

Forced Marriage 

The crime of Äktenskapstvång (forced marriage) (as specified in 4 ch. 4c § BRB) requires that a person be made to marry either as a result of a direct unlawful threat (olaga tvång) or through exploitation of the victim’s being in a position of vulnerability, as opposed to being manipulated or coerced into marrying, which under Swedish law is immoral but not illegal.  (TR at 33.)

In the case at hand, although there were several threats made by the father to the daughter in connection with her trip to Afghanistan, the threats were not made in direct connection with the marriage and thus his actions did not amount to unlawful duress. (Id. at 34.)  Because the young woman could not escape by leaving the place in Afghanistan where she was staying or by contacting the local authorities, she was in a position of vulnerability.  (Id.)  Because her father must have been aware that she did not want to get married in accordance with her family’s wishes, he was convicted of having forced his daughter to marry.  (Id.)

In addition to being convicted of forcing his daughter to marry, the father was found guilty of additional crimes, including sexual and physical assault and deprivation of liberty against the boyfriend.  (HovR at 10; TR at 42.)  In total, the father was sentenced to four years in prison.  (HovR at 10; TR at 42.)  It is not clear from the judgment what the sentence for the sole act of forcing the daughter to marry would have been, although the crimes of assault on the boyfriend were estimated to carry a prison sentence of three and a half years.  (HovR at 10.)

The father has previously indicated that he would appeal the verdict. (Erik Melkersson, Dom för tvångsgifte överklagas till Högsta domstolen, HD (Oct. 7, 2016).)