By Sara Uhnoo

To investigate the effects of the new Swedish consent-based rape legislation on legal reasoning and practice, Åsa Wettergren, Moa Bladini, and I have observed rape trials, collected judgements, and interviewed around 70 judges, prosecutors, defence lawyers and victim’s counsels. During the interviews it struck us that they often referred to how their own sons, brothers, or other men they know, felt anxious about being accused of rape or had been accused or convicted of rape on weak grounds. The reference to these young men epitomized problems that legal actors associated with the Swedish rape reform. I started to reflect upon the manifestations and significance of this discourse of male fear of being accused of sexual assault circulating among legal actors.

Based on studies by Wettergren, Bergman Blix and Bladini on the role of emotions in professional legal work, I became interested in how legal actors employ empathy as a tool to understand the perspectives of rape-accused men. I was particularly inspired by Törnqvist’s (2021) study of how prosecutors and victim’s councels use ‘sympathy cues’ to ‘evoke the judges concern for the complainants and to facilitate the empathic imagination of the complainant’s situation’. In our data I identified a similar approach used by defence lawyers, a male fear defence strategy, in which the discourse of male fear is employed to evoke concern for the defendant and to facilitate empathic imagination of his situation. Inspired by Kate Manne’s (2018) concept of himpathy, described as ‘the way powerful and privileged boys and men who commit acts of sexual violence or engage in other misogynistic behaviour often receive sympathy and concern over their female victims’, I label these defence efforts strategic himpathy work.

One type of strategic himpathy work is when defence lawyers account for hard-to-explain seemingly suspicious behaviors by the accused, for example a forgive-me message to the alleged victim. The aim is to convince the judges that an apology is a normal, rational, and reasonable reaction for a rape-accused man by inviting the judges to imagine themselves in the accused’s situation, identify with the affective state of the fear of the rapist stigma, and apprehend that his fear of being stigmatized in the future caused him to act as if he is guilty, even if he is innocent. The underlying assumption is that since rape is highly stigmatized the mere accusation of rape may cause emotions such as guilt, shock, shame, panic resulting in irrational and seemingly suspicious behavior.

A second type of strategic himpathy work is to create the imagery of a ‘ruined’ future of the accused if he is to be convicted. The defence lawyers stress the presumed severe effect of a conviction on the defendant’s future life; how the rapist stigma will make him, and his family, suffer, feel shame, and receive bad treatment. According to this logic the judges have the power to destroy a man’s future life. This may lead to judges experiencing ‘power discomfort’, that is ‘a possibility of guilt feeling for having misused one’s power’ (Bergman Blix & Wettergren 2018).

Moreover, it is easier to emphatically attune to similar others, that is people one can easily identify with. As argued by Manne (2018), himpathy ‘stem largely from capacities and qualities of which we’re rarely critical’ and ‘their naïve deployment will tend to further privilege those already unjustly privileged over others.’ Hence, in the sympathy game of rape trials, to diminish the risk of making biased judgements we encourage legal actors to reflect upon who they identify with and who they are inclined to believe. This is essential since the opposite process of identification is ‘othering’ and the other side of himpathy is ‘herasure’– silencing of the victim’s voice and her suffering (Manne 2018).

Sara Uhnoo is an associate professor in sociology at University of Gothenburg. Her current research is mainly concerned with the effects of the new Swedish rape legislation and informal learning in stigmatized Swedish suburbs. Contact: Sara.uhnoo@gu.se