RÄSÄNEN TO SUPREME COURT: PROSECUTOR STILL DEMANDS PUNISHMENT FOR RELIGIOUS VIEWS
Last Friday, the Prosecutor General's Office received leave to appeal in the case of Päivi Räsänen, Member of Parliament, and the charges will be heard by the Supreme Court, with minor exceptions. The position of the Prosecutor General's office is only found in the press release written at the end of last year: “It is important to gain the Supreme Court's opinion on how to weight the different fundamental rights in a case such as this. In particular, this is a question of the relationship between freedom of religion and expression and the prohibition of discrimination, and of when expressions should be considered as punishable hate speech rising above the threshold of criminality.”
The charges mainly concern Räsänen's book from 2004 and a famous tweet commenting on the Evangelical Lutheran Church of Finland's attitude to the Helsinki Pride parade. It may be worth remembering that although the trial seems to be starting all over again, that is not the whole truth. Two courts have acquitted Räsänen of all charges and many of the sentences placed into the mouth of the accused have been found to be untrue. The prosecution in its argumentation will have a hard job in trying to turn these acquittals into errors. That is what the new Prosecutor General, Ari-Pekka Koivisto, will try to do in backing these charges.
Even the new presentation of charges is fraught with as many problems as the previous trials. A major problem concerns the link between the definition of the alleged offence itself and fundamental rights. Secondly, it is unfortunate that the Prosecutor General, Ari-Pekka Koivisto, uses the populist term “hate speech” in his press release. After all, the law does not recognise such a term, nor has Räsänen been accused of such a thing. Thirdly, the brief reference obscures the actual charge on the basis of which Räsänen was tried: Christian speech regarding sin is now to be regarded as discrimination and therefore as a punishable opinion.
Grounds for Supreme Court hearing
The Supreme Court's website has some interesting principles on how to handle lawsuits. What kinds of matters does the Court take into account in a trial? (https://korkeinoikeus.fi/fi/index/oikeudenkayntikkossa/artikkeleitajalisatietoa/oikeudenkayntimenettelyakoskeviaperiaatteita.html)
- First, “a person may be held guilty of a criminal offence only on the basis of an act which, at the time when it was committed, is expressly provided for by law and that any penalty or other criminal sanction imposed must be based on the law. Nor may the court interpret a criminal provision to the detriment of the accused, contrary to its wording.”
- “The presumption of innocence is a key guarantee of legal protection for suspects. This provides that every suspect and accused person must be presumed innocent until proven guilty according to law.”
- “The application of the principle of double jeapordy is provided for in Chapter 11, Section 3 of the Criminal Procedure Act. This means that the court may only convict for the act for which punishment is sought. The description of the offence in the indictment is therefore binding on the court. However, the court is not bound by the charged offence or the provision of the law under which the penalty is sought. The application of the principle of double jeapordy also safeguards the rights of the accused to mount a defence. The accused has the opportunity to anticipate the issues to which they will have to pay attention when responding to a penal order.”
What can a layperson following these events deduce from the three points above? First, the criminal provision must not be interpreted “to the detriment of the accused, contrary to its wording.” The constituent elements of the crime of incitement include threats, slander and defamation. The desire is that the law renders a clear distinction between this and other insulting behaviour because “simply any public statement disparaging a group mentioned in the Section (of the law) is not necessarily punishable as an offence of incitement.” The offender must be aware that his or her statement is threatening or defamatory. In addition, the judges declare that “the offender's intention is to cause others to feel the same contempt for the ethnic group as he or she him/herself feels.” If these criteria are not met, the law has not been broken. The prosecution cannot change the description of the offence afterwards.
Secondly, it is good to remember that Päivi Räsänen must be presumed innocent even as she proceeds to the Supreme Court. This is confirmed by the fact that she has received a full acquittal in two courts. She is innocent. Now she will only have to face a higher court.
Thirdly, it is essential that “the court may only convict for the act for which punishment is sought.” In this case, it is a case of incitement against a particular group. Although the court is not bound by the title of the criminal offence or by a single provision of the law, it is bound by the content of the article on incitement. In my view, this is the main reason why it is not lawful in this process to try to import issues contained in the discrimination law into the proceedings. Incitement is not about whether someone feels offended, but about conscious slander or defamation by the accused.
It must be remembered that the law on discrimination is very broad. When a confessional Lutheran pastor a while back was accused of discrimination in the Hyvinkää District Court, the judges compared “failing to yield” (i.e. refusing to serve with a female pastor at the altar) to not allowing a Romani into a restaurant for ethnic reasons. If some individual had been offended by Räsänen's writings, he or she could have tried this matter in a court of law. As far as I can see, the Prosecutor General can no longer attempt such a case.
It is therefore necessary to state that the original and therefore legally binding charges against Räsänen are not about some private person finding Räsänen's speech offensive. The illusions of hate speech – since the prosecution now wants to use such terminology – fall within the domain of the law on discrimination. No one has accused Räsänen of such a thing for the simple reason that a complainant would place himself at risk by bringing a lawsuit as a complainant offence. As the complainant has requested anonymity and the responsibility has been transferred to the public prosecutor, the latter is bound by Finnish law in a completely different manner from what it would be for a private citizen.
This is not about fundamental rights
I would therefore stress that fundamental rights are not the problem in this case. This juxtaposition has been incorrectly created in the public debate. No one disputes that citizens must not be placed in an unequal position. No one disputes the criminality of either slander or the denial of human dignity. It is therefore a mistake, both philosophically and, no doubt, legally, to say that we are now weighting, that is, balancing, “different fundamental rights”, even though the Prosecutor General has stated precisely that. By claiming otherwise and by bringing fundamental rights into the discourse, the Prosecutor is trying to manipulate the trial and, no doubt, its news coverage.
How? The sentence above, “balancing”, implicitly suggests that fundamental Christian rights would be contrary to the fundamental rights of homosexuals in this particular context. They are not. Sexual minorities have rights under the law, and Räsänen has not denied this fact. Instead, both in two court cases and in the public square, she has openly stated that she accepts the rights of minorities under the law and has emphasised that their human dignity is permanent. The “fundamental right” of freedom of religion, on the other hand, applies to religious views. Questions of sin, atonement and salvation are perfectly normal spiritual topics, as anyone who has been to confirmation school in Finland knows. Speaking about sin does not diminish one's social dignity. This talk concerns only man's relationship with God. According to Christianity, every human being is a sinner by reason of original sin. Thus, there is no distinction or hierarchy among spiritually fallen human beings.
When the Prosecutor General leads us to understand that there is a conflict between fundamental rights, he is arguing the same thing that State Prosecutor Anu Mantila argued in court: the Christian concept of sin is in and of itself slander. In such a situation, Räsänen's presumed guilt is not proven; no, it is declared, i.e. it is postulated. Everyone knows at least that much, or it can be learnt from the principles of conducting trials that this manner of proceeding is wrong, and it is up to the prosecution in such a case to prove threats, slander or libel on the basis of Räsänen's own writings. Räsänen herself has not invoked religion to cover up slander or libel. But theology has been brought into the case precisely by the State Prosecutor.
I am constantly perplexed that the Prosecutor General and their office are employing principles in this trial that are contrary to Finnish law and they are invoking grounds that are not found in the law. The Supreme Court guidelines mentioned above take the trial in a completely different direction. Although a defendant does not have to testify against him/herself in court and can remain silent, I understand that in Finland the prosecutor is not allowed to lie.
The accusations do not concern the experience of discrimination
The problems continue in the next sentence in the text. According to a press release from the Prosecutor General's office, the Supreme Court is expected to rule on “the relationship between freedom of religion and freedom of expression and the prohibition of discrimination.” Although I am not a lawyer, in terms of a philosophical reading, there is a mistake here too. Both the Charge and the description of the offence have been changed. As far as I can see, such a modification is expressly prohibited by the principles highlighted on the Supreme Court's website. There are two problems. In the first place, the instructions above state: “The accused has the opportunity to anticipate the issues to which they will have to pay attention when responding to a penal order.” If the charges can be amended, it becomes difficult for the defence lawyer to prepare for the hearing. This is particularly problematic at the level of the Supreme Court, where the Court of Appeal's papers predominate.
The second problem is equally obvious. If the prosecution drops its charge of incitement and attempts to shift the trial in the direction of discrimination law, the entire nature of the trial changes. In fact, cases under discrimination law are not even really within the competence of the Prosecutor General. I have to repeat ad nauseam: the Räsänen trial has not so far been a matter of a plaintiff's crime – and you cannot introduce a plaintiff into it in the middle of the process.
If that boundary were breached, the judges would open a Pandora's box. In principle – if the law is the same for everyone – anyone could, on the basis of their own experience of being offended, take someone else to court through the Prosecutor General's office in the name of the “public interest”, without even being a party to the process. They would not be personally liable for anything and could not be prosecuted for, say, making a false report. This setup works both ways. Many people are also offended by Seta's [sexual advocacy organisation] attitudes and writings. The flood of accusations would clog the rivers of the legal system. Of course, we know that this is only philosophising. In actuality, such a precedent would most likely be interpreted in only one direction. It would then become a “lex Räsänen”, a decision made for one case only, which would then be applied at least to some other confessional Christian's views on the Bible and the practice of homosexuality. So the layperson asks now: Is what is being sought from the Supreme Court just this kind of limited “general interpretation” of the incitement clause?
For these reasons, the brief press release from the Attorney General's Office adds a completely new feature to the process. The layman's sense of justice perceives the contradictions that have arisen in such a way that the Prosecutor General (who, as a person, is fully responsible for the prosecution and the complaint, even if he arrives to the process midway) appears to have made a malfeasance level error in drawing up the complaint. This professional has violated the very criteria that the Supreme Court presents to the general public. 1. An attempt is now being made to interpret the Criminal Code “to the detriment of the accused, contrary to its wording.” 2. An attempt is being made to change the description of the offence. 3. Whereas under the crime of incitement, the focus is on proving the defendant's defamation, yet, under the crime of discrimination, that is, the crime now taken up under the demand of the Prosecutor, the focus is on the experience of the person allegedly discriminated against.
Imagine if similar changes were to occur in business contract negotiations and one party was caught doing this. The process would be immediately interrupted and any provisional contracts would be terminated. Something similar, I believe, should now be happening in the Supreme Court proceedings. The errors made by the Prosecutor General's office should be brought to light and, if the law says anything about these errors, those who made these errors should be treated as required by law. Prosecutors are not above the law. This process has been a farce so far, and to the layman's eye the situation does not seem to be getting any better.
The real accusations are about religion
The most fundamental charge, or rather accusation, against Räsänen's writings, based on previous trials, was that, in line with the current teaching of the Evangelical Lutheran Church of Finland, she considers homosexual behaviour to be a sin. The prosecution now wants to consider Christianity's speech about sin as discrimination and therefore as a punishable view. As one of her central arguments, State Prosecutor Anu Mantila argued in the earlier trials that speaking about sin is offensive in itself, and that no Christian can claim that a person's humanity can be separated from his or her actions. Therefore, the State Prosecutor does not accept the idea of “love the sinner, hate the sin.” A direct quote from a PowerPoint slide presented by State Prosecutor Mantila reads:
“On the grounds of the charges: Räsänen's view: 'Homosexuality is a sin and a shame, but homosexuals should be loved' is known worldwide as the doctrine of fundamentalist Protestant churches: 'Love the sinner, hate the sin'. The doctrine is offensive and insulting to human dignity because it denies homosexual relationships their equality and dignity, while at the same time attesting to a disgust and repugnance for them. In so doing, it also claims that society is justified in treating sexual minorities as not deserving of equality, respect and legal protection. (Kirby, Michael: Law, Human Rights and Religion – of Genocide, Sexuality, and Apostasy. Macquarie Law Journal, 2009, Vol.9 (2009), pp. 3-23, p. 17).”
Although the trial was not supposed to be about the Bible or theology, the Prosecutor's argument, which she herself considers the strongest line of reasoning for Räsänen's conviction, is based on theology. The Prosecutor, however, is not familiar with Lutheran theology, but presents a confused compilation of what she considers to be “fundamentalist” religious views. Moreover, “theology” appears on the slide only as the opinion of the Australian activist Michael Kirby, not as an article of law. Kirby's one-sided view was already held by the Court of Appeal not to be a reliable source of law.
The prosecution argues that it is impossible to distinguish between a person and his actions. Therefore, neither should Räsänen do so. The Prosecutor does not then accept the Christian doctrine that there is an absolute distinction between humanity and an act, between the dignity of the individual and the sinfulness of the act. However, the distinction is necessary. Otherwise, all evil-doers would be demonised and the Christian concept of forgiveness and “the justification of the ungodly” would become impossible. We are right at the core of the Lutheran concept of faith. The conclusion is therefore inescapable: The prosecution is deliberately seeking to criminalise Christian doctrine. This is not only unprecedented but also rather impertinent in view of the official position held in Finland by the Evangelical Lutheran Church of Finland.
I therefore conclude that there is one basis on which Räsänen could be convicted. The Supreme Court is unlikely to change its stance with regard to the distorted quotations and the words placed into Räsänen's mouth after these have been rejected by two courts. Nor are the judges of the Supreme Court likely to start to interpret the Bible – which, according to the law, is not something they are allowed to do. The prosecution has been weak from the start. That is why the Prosecutor only has one goal to which she aspires: Everyone in Finland should accept same-sex sexual intercourse. It should not be morally criticised. After all, it is the only substantive thing that Räsänen does not approve of. Neither do the Evangelical Lutheran Church of Finland (in its official statements), nor the Roman Catholic Church, nor the Finnish Orthodox Church approve of this very same thing.
This subject matter is of course theological and ideological, but it is nevertheless the only remaining substantive issue. And it is a subject on which the prosecution has been consistent from the outset. If Räsänen is to be convicted, it is precisely the theology that must change. Of course, the question of morality or the Church's view is not yet to be found in the law. It is not to be found in the law on incitement, nor in any other article of law. Christian morality has not been criminalised and there are no precedents in this area. But it is precisely this detail that the prosecution is seeking to change. Homosexual activity cannot be called sin.
This is not a sensible position, but that's not the point. The Evangelical Lutheran Church of Finland, or its holy book the Bible, does not accept adultery either, even though almost the remainder of society does. Even adultery is no longer literally forbidden by Finnish law. Nevertheless, the Churches are allowed to consider adultery a sin and also to speak publicly about the subject. Same-sex sexual intercourse is a parallel issue, and it is even specifically related to sexual behaviour. However, the prosecution is now seeking a new, stricter interpretation of this. The prosecution wants to transition talking about sin into an act of incitement against an ethnic group.
The end result is simple. Is the concept of sin currently taught by the Church contrary to Finnish law and should the teaching and open discussion of sin be punished? The prosecution explicitly wants to criminalise the Church's concept. Such an attempt demonstrates once again that it is by no means a question of fundamental rights or their infringement. Under Finnish law, same-sex couples may, if they so desire, have a civilian marriage. Their rights have been taken care of. The problem here is what one is allowed to think about homosexuality.
The trial as a sign of the times
It goes without saying that the prosecution has conducted the trial on the basis of the terms of the identity politics popular in our time. Both the previous Prosecutor General and the State Prosecutor who appeared in court have openly stated this in interviews. Our day is characterised by the protection of sexual identities. This objective is reflected in the Räsänen trial. The Prosecutor has tried to create the impression that the State should protect the experience of minorities. As I said above, this has inevitably been a legal error. The law on incitement does not recognise such protection. The question under the law should be whether Räsänen can be shown to have maliciously and knowingly defamed a group of people.
If and when the Prosecutor now argues that calling a particular action sinful is slander and degrading to human dignity, s/he is taking a stand on religion. At the same time, s/he is proposing restrictions on the Church's teaching. In practice, this means that the State is trying to restrict the viewpoints of the Evangelical Lutheran Church of Finland and its representative, local Church Councillor Räsänen, on both the concept of the human person and correct morality. This is the key issue before the judges of the Supreme Court today.
In addition to identity politics, ideological divisions are reflected in our times in many other ways. The world has changed during this long drawn-out legal process. The West is living in a dramatic state of internal division. With the end of the Cold War and the fall of Eastern Bloc communism, the confrontations have changed. For some strange reason, the Western left supports both the old CIS/Eastern Bloc and radical Islam, which in turn have found each other in the BRICS cooperation, thanks to a common enemy, the United States.
Something like this change explains how it is possible that, after Hamas carried out its terrorist attack on Israel, hundreds of thousands of people have marched in major Western cities in support of Hamas. The rainbow masses and the political left have come out publicly in support of international terrorism. In the United States, when Iran carried out a major missile attack on Israel, at the same time, the “social justice movement” at universities such as Columbia and Yale held demonstrations in support of Iran, shouting anti-Semitic slogans – without any obstruction from university authorities. At the universities, the hatred of Jews is open, and the activity is led by prominent supporters of minority groups and gender ideology.
A new Cold War is building its wall at the heart of the internal politics of the Western world. Our societies are thus in turmoil because of the ideology of the same rainbow movement, which in one form or another is manifested in Pride demonstrations. It is not slander, but a fact that minority “woke groups” are now marching with their own signs in support of Hamas and Iran. In States upholding rule of law where political and cultural conservatism opposes Islamist terrorism and supports Israel, the “progressive” left of the same countries accepts militant Shiite activism and identifies with the supposed minority (the Shiite States surrounding Israel, however, have a population of over 100 million) status of radical Islam .
The world has thus become highly polarised during Räsänen's multi-year trials. The culture war is real. It has replaced the traditional West-East confrontation in Western politics. Moreover, the right-wing / left-wing division has taken on a new postmodern meaning. In this atmosphere, in the West, Judeo-Christian morality and the Christian concept of marriage have been forced into that form and mould of conservatism which the rainbow crowd, with its hundreds of thousands of supporters, opposes quite as strongly as they do Israel and the US Republican party. The same dichotomy is seen in Finland and this has attracted the attention of academics and journalists alike. Hints of it were even seen during the recent presidential elections. Therefore, there is all the more reason to state that the Räsänen trial is at the heart of the ideological upheaval of our time.
I am not saying that the Prosecutor General or the State Prosecutor are in favour of Hamas terrorism. I am simply describing the general cultural atmosphere in which this trial is taking place. We live in a time of confrontation. Attitudes are harsh on both sides. The Räsänen trial is not being conducted in a neutral situation, where the prosecution's only objective is benign fairness and the proper treatment of people. This is about something else. Of course, the law on incitement is still perfectly suited to cases where a minority is equated with animals or labelled as natural killers – which, by the way, is what Helsingin Sanomat [Helsinki News, the main Finnish newspaper] accused Räsänen of in this same trial, without the police paying any attention to that. In Räsänen's case, nothing of that sort of thing emerges from her texts – and this has already been established in the Helsinki District Court and the Helsinki Court of Appeal. So what else is at stake? They want to ban Räsänen's religious thinking. The prosecution seeks to criminalise her understanding of sin and considers it degrading because it conflicts with identity politics. That objective is an expression of harsh attitudes. In my view, it parallels the case I read about just today, 23 April 2024, where, on the basis of aggressive and even violent pro-Hamas demonstrations by students, the administration of Columbia University denied their own Jewish professor access to his workplace.
Privatdozent, Dr. Timo Eskola