RETROACTIVE RESPONSIBILITY:

Abstract

State redress for abuse and neglect in children’s homes has been debated in all Scandinavian countries since early 2000s. In Sweden, an official apology was issued in 2011, and a temporary law enabled Swedish care leavers to apply for compensation of SEK 250,000 during 2013 and 2014. In Denmark, proposals for an official apology have repeatedly been turned down in Parliament. In this article, I compare argumentation for and against state redress in the two countries. Any claim for historical justice raises questions about how to understand the injustices committed: do they safely belong to the past, or to an extended present? Using the concept ‘politics of time’, I show that Danish opponents of the proposed apology have stressed the time distance, while proponents for state redress in both countries have stressed the need to deal with all too present memories of abuse. Another main argument against state redress in the Danish political debate was that we should not anachronistically judge historical actors against the moral framework of the present. I argue that a ‘retroactivity dilemma’ is inevitably raised in redress processes, and discuss the changing notions of retroactive responsibility during the Swedish policy process.

Keywords:

• state redress
• reparations politics
• official apology
• politics of time
• out-of-home care for children
• foster care

Introduction

In all Scandinavian countries, people who have suffered abuse in out-of-home care for children have made claims for state redress: measures to give victims of rights violations recognition through different forms of reparations, like an official apology or economic compensation.¹ During the 1990s, several groups demanded that the Norwegian state should make amends for historical injustices, among them care leavers from children’s homes and reformatories. In 2004, a national commission of inquiry concluded that neglect and abuse had taken place in many public institutions for children. Existing local redress schemes were then complemented by a possibility to get ‘ex gratia’ compensation from the state.² The Norwegian example inspired a similar campaign in Sweden, which resulted in an extensive interview-based inquiry about both children’s homes and foster care, an official apology issued in 2011, and a temporary compensation law enacted in 2012.³ Calls for an official apology have also been made in Denmark, spearheaded by former residents of the Godhavn Boys' Home, but several governments have rejected such proposals.⁴

Proposals for an official apology or economic compensation for past injustices pose a fundamental dilemma. While the very idea of criticizing previous legislation and practices and demanding state redress is often made possible due to changing norms and standards of living, a common objection to such claims for redress for past wrongs is that we should not anachronistically judge historical actors against the moral framework of the present. Furthermore, a central principle for law making is the prohibition against retroactive legislation. On the other hand, claims for recognition are made exactly because the victims did not have access to justice in the past. I have called this the ‘retroactivity dilemma’ of redress for historical injustices.⁵ While the retroactivity dilemma inevitably arises with claims for redress, historians, politicians and other stakeholders can choose to handle it in different ways. The aim of this article is to analyze how politicians and policy makers have argued for or against state redress in two processes concerning child abuse in institutional settings in Sweden and Denmark, and particularly to discuss the role of notions of time and state responsibility in this argumentation.

The Danish care leavers’ attempts to get state redress have been less studied than the counterparts in Sweden and Norway.⁶ Rhetorical scholar Lisa S. Villadsen has however published several analyses of argumentation strategies used by the government to maintain the ‘Danish non-apology culture’.⁷ Studying campaigns that have not been successful can nuance claims that we live in the ‘age of political regret’.⁸ Such expressions rightly point out that during the last decades there have been many campaigns for historical justice, and that several states have responded to this by providing different forms of redress. For example, the inquiries into abuse in children’s institutions discussed in this theme volume can be seen as a new development in the larger field of transitional justice.⁹ However, if we only study the cases where calls for an inquiry, apology or compensation have resulted in political action, this trend risks to be overstated.

The experiences from Norway and Sweden have been used by both sides in the Danish debate – either as proof that state redress is important and feasible, or as warning examples that an apology would be followed by claims for costly compensation. This tendency to use international comparison as a political argument has been noted in previous research about reparations for care leavers in the Nordic welfare states.¹⁰ However, most of the existing studies focus on state redress in one country; hence, there is a lack of comparative research.¹¹

In this article, I will analyze the parliamentary debate regarding a proposal for an official apology to Danish care leavers that was voted down in 2016, and compare the positions on state redress articulated in that debate with those put forward in inquiry reports and policy documents produced during the Swedish redress process.¹² Rather than providing explanations for the different outcomes, I will use the two cases as contrasts to each other. Since the Swedish decision to pay economic compensation was the result of a political compromise, the different positions were not as clearly articulated as in the Danish debate. On the other hand, the way in which state redress has been motivated in the Swedish process can shed light on the argumentation strategies employed by Danish proponents of an official apology.

State redress as ‘politics of time’

Suggestions that the state should make amends for past wrongs raise two questions that have a bearing on the retroactivity dilemma. The first is whether the injustices should be seen as historical, or enduring into the present. Berber Bevernage, a historian, introduced the concept ‘politics of time’ to stress that notions about distance in time are not neutral. He suggests that when reconciliation and moving forward as a nation are the overarching aims, it becomes difficult for victims to articulate the continuing consequences of past injustices in the public debate.¹³ In an analysis of the knowledge production of truth commissions, Bevernage makes a distinction between ‘modern historical discourse’ and ‘memory of offence’:

By drawing from what I’ve termed modern historical discourse, I suggest, truth commissions aim at the restoration, or creation, of a modern consciousness of time, thereby confirming a characteristically modernist disjuncture between past and present; in turn, this idea of time is profoundly challenged by ‘memories of offence’ which refuse to let the past go, and which insist that the past habitually ‘haunts’ the present.¹⁴

This binary is also relevant for other forms of state redress, and the first step in my analysis will be to examine which role different notions of time played in argumentation for and against redress in the two cases.

Secondly, both apologies and redress schemes raise the issue of responsibility. Official statements about historical injustices are often carefully drafted, since the choice of words can signal the degree of responsibility assumed. Reparations laws ‘make statements about responsibility’, even when they are designed to avoid liability.¹⁵ In 2011, the Danish Minister of Social Affairs, Benedikte Kiær (The Conservative People’s Party), read a ‘statement of regret’, arguing that she could not apologize for what individuals did decades ago.¹⁶ In her study of the campaign for reparations for slavery in the former Danish West Indies, Astrid Nonbo Andersen makes a brief comparison with the Godhavn case and suggests that the refusal to give an apology can be explained both by concerns that it would be followed by claims for compensation and fears that an apology would set a precedent.¹⁷

The position that today’s politicians cannot take responsibility for previous decisions stems from a confusion of individual guilt and state responsibility. Political scientist Stephen Winter suggests that: ‘State redress claims do not assign rectificatory liability to past agents. Rather, they concern the legitimacy of present political orders’.¹⁸ According to this perspective, revelations about past injustices burden the legitimacy of the present state; thus, different forms of redress can be seen as a way of re-establishing state legitimacy. But for the claim to make sense, the injustices must be a form of ‘authorized wrongdoing’, e.g. linked to the state’s exercise of authority.¹⁹ Winter distinguishes between three different forms of authorized wrongdoing: 1) discriminatory legislation, 2) acts that according to today’s moral framework should have been prohibited have been permitted or 3) acts that were illegal have in practice been tolerated.²⁰ Another potential way to motivate state redress is to argue that the state is the only actor that has the capacity to provide redress.²¹ In the second part of the analysis, I will however focus on the above-mentioned notions of state responsibility, that are more explicitly related to the ‘retroactivity dilemma’.

Political contexts

State redress is the result of political processes involving a variety of actors: victims, journalists, historians, politicians and officials, all with different resources at their disposal.²² In order to provide the political context of the argumentation analyzed here, I will give an overview of the process in both countries. In my PhD dissertation, I traced the Swedish campaign from the articulation of claims for redress to the enactment of the Redress Act.²³ The first public claims for redress were made by a few individual care leavers in 2003, in a radio programme. The care leaver organization ‘Stepchildren of Society’ (Samhällets styvbarn) was founded in 2004. The TV documentary ‘Stolen childhood’ (Stulen barndom), broadcast in 2005, included testimonies of systematic abuse in a boys' home and created political momentum for the issue. In 2006, the Swedish Inquiry on Child Abuse and Neglect in Institutions and Foster Homes (from now on called the Abuse and Neglect Inquiry) was set up to document negative experiences of out-of-home care. Morgan Johansson (S), Minister of Social Affairs, appointed the commission. Several MPs from the opposition suggested that the commission would get an additional task to prepare economic redress. In response, Morgan Johansson stated that the inquiry in itself was a form of redress. He also stressed that the ongoing documentation of abuse would provide important lessons for preventing similar mistreatment in the future.²⁴ In parallel, a group of care leavers tried to get compensation through a class action lawsuit against the municipality of Stockholm that had taken them into care, but the court rejected the case.²⁵

After the elections in September 2006, a centre-right wing government was formed. Christian Democrat, Maria Larsson, who earlier had advocated for redress as an MP, was appointed as Minister for Children and the Elderly. In 2010, when an interim report from the Abuse and Neglect Inquiry had shown a pattern of abuse and emphasized that this was not merely exceptions or mistakes made by individuals, she set up another commission, the Inquiry on Redress for Past Abuse (from now on called the Redress Inquiry). In February 2011, this second commission suggested an official apology for abuse and neglect in foster homes and institutions for children and an economic compensation of SEK 250,000 (approximately EUROs 26,000). At the launch of the redress report, Maria Larsson expressed support for its suggestions, but there were internal divisions in the government coalition. On 10 September 2011, Prime Minister Fredrik Reinfeldt (The Moderate Party) announced that there would be no compensation. This was criticized by the opposition, and since the coalition was a minority government, it had to negotiate. On 28 September 2011, an agreement was reached, including all parties except the Sweden Democrats. The details of the agreement were to be sorted out in subsequent law drafting process. The next day, 29 September, the Abuse and Neglect Inquiry presented its final report, building on interviews with 866 persons. The official apology was offered during a ceremony on 21 November 2011. The Redress Act was enacted in November 2012. When the legislative proposal was debated in Parliament, no one voted against it, but the Left Party and the Sweden Democrats made some remarks about the levels of compensation and time limits. Between 1 January 2013 and 31 December 2014, persons who had been the subject of severe abuse and neglect in foster homes and institutions for children could apply for compensation.²⁶

Historians, Maria Rytter and Jacob Knage Rasmussen, have described the first steps in the Danish campaign for state redress. In 2005, Danish National Television broadcast the documentary ‘The Boys’ Home’ (Drengehjemmet), which contained testimonies from care leavers from the Godhavn Boys' Home and interviews with former staff members. Accusations about abuse, neglect and medical experimentation were put forward, and the ‘National Association of Godhavn Boys’ (Landsforeningen Godhavnsdrengene) was founded. They called for further investigations, and in 2010, a project aiming to document their experiences was carried out by Svendborg Welfare Museum, with financial support from the Ministry of Social Affairs. Rytter and Knage Rasmussen both worked with the report, which covered Godhavn and 18 other institutions, out of about 350 institutions for children during the period 1945–1976. It was based on interviews with 85 care leavers, as well as some former staff members and inspectors, and archival sources.²⁷ The report was released on 9 May 2011, in the presence of most interviewees. The ensuing public debate focused on the Godhavn Boys’ demand for an official apology which, as previously mentioned, was rejected.²⁸

At the time, Minister of Social Affairs, Benedikte Kiær was part of a centre-right wing coalition, led by Lars Løkke Rasmussen (Venstre). On 13 May 2011, she was asked to clarify her position in a formal question from MP Özlem Sara Cekic (Socialist People’s Party).²⁹ The above-mentioned statement of regret was delivered in an open hearing organized by the Danish Parliament’s Commission on Social Affairs on 9 June 2011. Kiær acknowledged the findings of the report and repeated her reasons for not apologizing. Apart from Cekic, one of the MPs most active in questioning this position was Mette Frederiksen (The Social Democratic Party).³⁰

After the 2011 election, Helle Thorning Schmidt, leader of the Social Democratic Party (A) formed a centre–left government coalition, together with the Socialist People’s Party (F), The Danish Social Liberal Party (B) and with the support of the Red-Green Alliance (Ø). The government’s position on state redress remained the same. In January 2012, the new Social Democratic Minister of Social Affairs, Karen Hækkerup, denied further calls for an official apology – referring to essentially the same arguments as her predecessor.³¹ Pernille Skipper, leader of the Red-Green Alliance, asked if the Minister would take the initiative to a broader investigation into the conditions in children’s residential institutions in the 1960s and 1970s, making reference to the ongoing Swedish governmental inquiry.³² The Minister responded that the Godhavn report covered enough to learn from the past and prevent this from happening again and did not see the need for further studies.³³

In a parallel process, however, the conditions in a wider range of social institutions in the post-war period had been criticized. The government initiated an open call for a social history project about people in state custody during the period from 1945 to 1980. The project ‘In Care, in History’ (Anbragt i historien) was carried out by a group of researchers based at Svendborg Welfare Museum. It documented not only experiences from children’s homes, but also psychiatric hospitals and similar institutions.³⁴

During the last few years, the issue of state redress has been pursued both in the courts and the Danish Parliament. The leader of the National Association of Godhavn Boys, Poul Erik Rasmussen, sued the Danish state for compensation for the abuse he had endured during his three years at the institution. In April 2015, the City Court of Copenhagen (Københavns Byret) declared that the case was barred by a statute of limitations.³⁵ The Social Democrats lost power in the June 2015 election, to a new minority government led by Lars Løkke Rasmussen (V) in coalition with the Conservatives (C) and with parliamentary support from the Danish People’s Party (O). Mette Frederiksen was elected as the new leader of the Social Democratic Party. On 22 January 2016, she submitted a proposal to the Danish Parliament (Folketinget) about an official apology from the state to persons that had suffered abuse while in residential care institutions, together with a group of Social Democrat MPs. The proposal made explicit references to both of the above-mentioned historical reports.³⁶

During the debate on 16 February 2016, the Social Democratic proposal got support from the former coalition parties as well as The Alternative, a new green, social liberal party founded in 2013. MPs representing Venstre strongly opposed the proposal, as did the Conservatives. MPs from another new party, Liberal Alliance, were more in favour of redress but thought the proposed apology would be unfair to other groups. MPs representing the Danish People’s Party declared that they supported the idea of redress for the victims, but said Parliament was not the right forum – the initiative for an official apology should come from the government.³⁷ A recurring theme in the debate was questioning the Social Democrats’ sudden change of position, and allegations that they had used the case to gain power.³⁸

Further political initiatives have been taken after the debate analyzed in this article. The feature film The Day Will Come (Der kommer en dag), based on memories from Godhavn and produced in co-operation with former residents, was released in April 2016, which resulted in renewed media attention.³⁹ In March 2017, Pernille Skipper (Ø) posed a formal question about the possibility of an official apology to Minister for Children and Social Affairs, Mai Mercado (C), who repeated previous argumentation against an apology and did not want to intervene as long as the compensation case was under consideration by the courts.⁴⁰ In November 2017, another decision stating that the case was barred by the statutes of limitations led to new media coverage.⁴¹ On 17 December 2017, MPs from the Red-Green Alliance made a new proposal for an official apology, now only concerning persons that had lived in the institutions covered by the Godhavn report in 1945–1976.⁴² This proposal was turned down on 6 February 2018.⁴³ I have chosen to analyze only the 2016 debate, as it concerns the most comprehensive proposal, and since the argumentation on the issue of retroactive responsibility from both sides has essentially remained the same.

Distance in time

Sweden

The Abuse and Neglect Inquiry was set up to document negative experiences and motivated as a way to move forward.⁴⁴ No clear-cut distinction was made between historical abuse and contemporary problems. There are no evident time limits for a study on abuse in Swedish out-of-home care, and the inquiry had no fixed time limits. Instead, the time period covered was determined by which interviewees signed up, and how far back their experiences stretched. Since the commission was explicitly prohibited from discussing issues of liability in individual cases, a flexible time limit was applied. If there were any testimonies about criminal acts that could still be prosecuted, the case was to be handed over to the police. The reports include testimony from people born as late as the 1980s, although most of those interviewed were born in the 1940s and 1950s.⁴⁵ The final report emphasized that abuse in out-of-home care is not a closed chapter and discussed methods of prevention.⁴⁶

The Redress Inquiry, in contrast, was given a time frame already in the directives. Any suggestions about economic redress were to cover only persons who had been in care between 1920 and 1980.⁴⁷ During the formal public consultation about the inquiry report, care leaver organizations questioned the time limit.⁴⁸ Stepchildren of Society suggested that compensation should be given in cases that would be barred by statutes of limitations before the right to compensation had ceased.⁴⁹ When Prime Minister Fredrik Reinfeldt made his surprise announcement in September 2011 that no economic redress would be given, the time limit was turned into an argument against compensation. He stated that it would be unfair to compensate only for abuse that had taken place before 1980.⁵⁰ To further motivate this decision, Maria Larsson published an op-ed article, arguing that the most important task for politicians is the future and enumerating measures taken to ameliorate societal care for children.⁵¹ Since a political agreement was then reached before the legislative proposal was addressed in Parliament, this kind of argumentation against state redress was not articulated in the parliamentary debate.⁵² The 1980 time limit was however questioned by the Council on Legislation (Lagrådet) and caused debate even after the law was enacted, but suggestions from individual MPs to extend the time limit have not been successful.⁵³

Denmark

Both of the historical reports that were mentioned in the Danish debate had explicit time limits. The Godhavn report took end of the Second World War as its starting point, and finished in 1976, when a new Social Assistance Act (Bistandsloven) entered into force.⁵⁴ The ‘In care, in history’ project was originally supposed to start in 1945, but the final report traces the development of social care institutions back to a major social reform in 1933, when the state took over responsibility both for children’s institutions and residential care for adults. The latter time limit was set to 1980, when the State Mental Retardation Service (Statens Åndssvageforsorg) was decentralized.⁵⁵ Similar to the Swedish case, these reports were used to substantiate the proposal for an official apology, but they were also invoked by MPs who opposed the state redress schemes.

Opponents of the proposed apology argued that historical documentation was sufficient as redress. Several MPs stated that the voices of care leavers were now part of the historical record, that we should learn from history, and that measures should be taken for this not to be repeated – but that no apology was necessary.⁵⁶ Minister of Social Affairs, Karen Elleman (V), placed emphasis on the time distance when questioning whether the issue of responsibility is even relevant when it comes to things that took place ‘over 50 years ago’.⁵⁷ She also stressed that things had changed dramatically, for example, regarding supervision of care institutions.⁵⁸ Susanne Eilersen (O) stated that politicians could not change history; they could only try to make sure that it will not be repeated.⁵⁹ In these speeches, the injustices were constructed as something distant, belonging to another time period, and not possible to influence. Creating a break between past and present, by declaring the abuse as history, was central to the argumentation against state redress.

Proponents of the apology, on the other hand, challenged this disjuncture between past and present, and stressed the presence of ‘memories of offence’. Mette Frederiksen (A) said ‘All this sounds like a distant past and as a completely different society, but it is not a distant past. [---] This is our time’.⁶⁰ Alluding to the presence of care leavers in the audience, Torsten Gejl (Å) stated that ‘history is very much alive in this hall today’.⁶¹ Trine Torp (F) also explicitly argued for a different understanding of historiography:

‘the Minister says, that history cannot be changed. Historiography is however something that happens all the time. Histories are something, that we write together all the time, and our common history has meaning for all of us. What has happened can of course not be changed, but the history, or the story, that there is about it, can indeed be changed.’⁶² Mette Frederiksen (A) expressed a similar view, when arguing that this ‘dark chapter’ of Danish history should become a part of ‘collective memory’.⁶³ Thus, by referring to the care leavers’ memories of abuse, and arguing that their stories should be commemorated, proponents of an apology tried to bring this issue into the present.

Notions of time were also present in discussions about the potential function of an apology. The needs of care leavers to get recognition and closure was one of the main arguments for an official apology. Pernille Skipper (Ø) claimed that the abuse had resulted in both physical and mental scars.⁶⁴ Trine Torp (F) emphasized the importance of someone taking responsibility for the historical injustices in order for the victims to be able to overcome their trauma and move forward in life.⁶⁵ Mette Frederiksen (A) referred to discussions with care leavers who still had to live with shame caused by the abuse and argued that an official apology would help them to stop feeling guilty.⁶⁶ Pernille Rosenkrantz-Theil (A) stated: ‘It is correct that we cannot change what once took place, but we can change their history’.⁶⁷

The need to move forward was not only attributed to care leavers. An official apology would, according to Mette Frederiksen (A), also be a way for the Danish nation to move on as a society. She described Denmark as a country with a very progressive social policy, which was something to be proud of, but that the abuse of children in out-of-home care was ‘one of the darkest chapters in contemporary Danish history’. She talked about the care leavers as citizens and stressed that what was done to them is a part of who the Danes are as a people and a society. The proposal for an apology could send a message to the care leavers that the state that failed to see them earlier now has regrets.⁶⁸ This line of argument reminds us that even though state redress builds upon an understanding that past injustices have continuing consequences in the present, on another level such practices can have a legitimizing function by distancing the present state from the state in which the abuse could take place.⁶⁹

Retroactive responsibility

Sweden

The retroactivity dilemma was handled in several different ways during the Swedish process. The Abuse and Neglect Inquiry was tasked to document acts that would have been regarded as serious forms of abuse and neglect even at the time they were committed.⁷⁰ After rather detailed discussions of changing regulations and recommendations regarding societal child care, the commission chose instead to use the UN Convention on the Rights of the Child from 1989 as its normative framework. At the same time, the interim report stated that many cases of abuse that it documented were illegal at the time or at least not supported in the instructions for employees in children’s institutions.⁷¹

Regarding the issue of responsibility, the Redress Inquiry stated that the abuse documented was a violation of the UNCRC, but they also pointed out that conventions could not be applied retroactively. Instead, the state’s moral responsibility to offer redress was put forward. The main motivation for this was that lacking state supervision of childcare services and institutions had failed to prevent abuse.⁷² This could be seen as a version of the third type of authorized-wrongdoing presented above. However, the Redress Inquiry concluded that the state did not have any legal obligation to provide compensation. Thus, whatever reparations might be offered would not be based on determining the liability of an individual, an institution or the state. The legislative proposal was based on an ‘ex gratia’ way of thinking; the government’s possibility to grant compensation to individuals in dire circumstances would be applied to a whole group through a temporary law.⁷³ The recipients of compensation were thus cast as victims in need of recognition and redress, rather than rights-holders.⁷⁴ As an example, the voluntary nature of the state redress offered was used as an argument that negative decisions could not be appealed.⁷⁵

Individual compensation on a larger scale requires an abstract definition of the injury and a standardized method of assessing claims; during this process, the general understanding that abuse had taken place in out-of-home care for children was replaced by a more narrow definition of the kinds of abuse that victims should be compensated for. Anyone with negative experiences from their time in care could come forward and give testimony for the first inquiry, while the Redress Inquiry stated that compensation should only be given to persons who had been subjected to particularly severe forms of abuse. Otherwise, they argued, the financial compensation would not fulfil its symbolic purpose. Their discussions were still quite influenced by a children’s rights perspective, and they suggested a case-by-case investigation with a focus on determining the potential risks for the child’s health and development.⁷⁶

During the consultation process, some legal experts voiced concern that the suggested law would be hard to interpret and asked for more guidance. In the government’s proposal referred to the Council on Legislation for consideration, the time distance is stressed, with reference to changing standards of living and views about what constitutes a good childhood. It was stated that judgments about what had constituted ‘severe neglect and abuse’ should be made in relation to contemporary views, not today’s values. The text also contains rather stark examples of what could be seen as admissible treatment of children at different periods of time.⁷⁷ In the following process of preparing the law, the close relation between notions of distance in time and responsibility is evident. I interpret the tendency to put emphasis on distance in time and changing conditions as an attempt to limit state responsibility at a time when the opposition had pushed the government to accept the compensation law.⁷⁸ As historians of childhood, Johanna Sköld and Bengt Sandin, joined by a large group of researchers, questioned these formulations and argued that they built on misconceptions about the history of out-of-home care for children.⁷⁹ In their article in this theme volume, Sandin, Sköld and Schiratzki examine the extent to which this criterion has resulted in rejected applications.

Denmark

Proponents of the apology argued that there was evidence of abuse that had been illegal even at the time when the acts were committed.⁸⁰ The Godhavn report was invoked several times in order to support this argument.⁸¹ Pernille Skipper (Ø) expressed that the Godhavn report had shown ‘systematic abuse, neglect, sexual abuse, and mental terror’.⁸² Pernille Rosenkrantz-Theil (A) acknowledged that judging actions in the past entails a dilemma, but that in this case the decision was easy: ‘When we talk about sexual abuse of children, when we talk about, that they get beaten in the head with keys by their teachers, can we then judge if that was illegal according to the contemporary legislation or not? Yes, we can indeed’.⁸³ Hence, MPs that argued for the apology did so mainly in relation to the third type of authorized wrongdoing. However, some proponents went further, like Torsten Gejl (Å) who claimed that different conditions during previous historical periods should not serve as an excuse for child abuse.⁸⁴

Arguing for an apology, Trine Torp (F) also mentioned that the Godhavn Boys had been overmedicated.⁸⁵ The report contained a special study about the alleged experimentation by a psychiatrist working at Godhavn. In 60 out of 269 medical journals, the use of psychopharmalogical drugs was mentioned, both antipsychotic drugs and habit-forming drugs such as amphetamine and benzodiazepines. For example, 12 children were treated with Truxal for enuresis (bed wetting) in the period 1963–1969. The report stated that while this cannot be considered as standard treatment at the time, it does not seem like organized experiments had been carried out – rather experimental treatment of individual boys. This put the boys at risk, but the authors stressed that it was hard to ascertain whether the treatment had been illegal at the time.⁸⁶ However, such nuances were not referred to in the debate.

Another variant of the argument that illegal acts had been tolerated in practice was the critique of the lack of efficient supervision, documented in the Godhavn report.⁸⁷ Some opponents of the apology did not accept the existence of a state responsibility related to authorized wrongdoing. Susanne Eilersen (O), stated: ‘it is hard to apologize on behalf of others’.⁸⁸ Elaborating this kind of argument, Mette Abildgaard (C) asserted that only the people directly responsible for an action can make an apology, and therefore, the present Prime Minister does not have a responsibility to apologize.⁸⁹ A different position was put forward by Laura Lindahl from Liberal Alliance who stressed that the state also has a responsibility when it fails to take action when children are abused in their own families. She expressed her sympathy with the intention behind the proposal, but thought it was unfair to give special consideration to children in care.⁹⁰

The main argument put forward by opponents of the proposal was the one previous research has shown to be dominant in the Danish debate on official apologies. Jan E Jørgensen (V) stated: ‘It is hard to judge past actions against contemporary standards’, and cited previous statements by Social Democrats along the same lines to underline that they had changed their opinion.⁹¹ Mette Abildgaard (C) voiced similar concerns.⁹²

Another argument against the proposal was what Villadsen has called ‘the court argument’.⁹³ The issue of responsibility, several MPs argued, is not to be treated by Folketinget, but rather by the courts. Karen Elleman (V) made an explicit reference to the ongoing court case against the Danish state.⁹⁴ In a more general comment, Jan E Jørgensen (V) said that making an official apology would be the start of a ‘slippery slope’. He feared that future politicians would be misled by revelations in the press.⁹⁵ Answering this comment, Pernille Rosenkrantz-Theil (A) pointed to the difference between, on the one hand, naming and shaming individual perpetrators without a legal procedure and, on the other hand, the parliament as representative of the state, taking responsibility for historical injustices.⁹⁶ Another position, put forward by representatives of the Danish People’s Party and the Conservatives, was that this should be an issue for the government, not parliament.⁹⁷ This position might be explained as a strategic choice – a way of expressing support for the idea of an apology, without going against the government.

The idea that the courts should be the arena for assigning responsibility was also present when opponents of the proposal argued that Denmark had no tradition of official apologies. Apologies, they argued, have only been made when the issue of responsibility had already been tried in court.⁹⁸ As Villadsen pointed out, two official apologies have been made in Denmark, and only one of them came after a court decision.⁹⁹ In 1999, Prime Minister Poul Nyrup Rasmussen (Social Democrat) apologized for the forced removal of inhabitants of Thule in Greenland in 1953, to make space for an American military base. The apology took place after a long campaign for redress, and a decision in the Eastern High Court (Østre Landsret) that the Danish state should pay both individual and collective compensation. In 2005, however, Prime Minister Anders Fogh Rasmussen (V) made an official apology for collaboration with Nazi Germany during WWII, which was not preceded by any court ruling.¹⁰⁰ Advocates for an apology to the Godhavn Boys referred to Fogh Rasmussen’s apology to argue that Denmark did actually have a tradition of making official apologies.¹⁰¹ Jeppe Bruus (A) also used the 2005 apology to challenge the idea of a strict dividing line between politics and law, and cited parts of the apology text, as a general argument for official apologies.¹⁰² Jan E Jørgensen, (V) responded that statements about responsibility and guilt should be made by the courts, not Parliament, and that the division of powers must be respected.¹⁰³

MPs sceptical of the proposed apology, but sympathetic to the need for redress, suggested a different solution, which was to change the statutes of limitations in cases of sexual abuse of children, so that older cases could also be handled in courts rather than Parliament.¹⁰⁴ On 4 October 2017, Minister of Justice Søren Pape Poulsen (C) submitted a legislative proposal requesting that statutes of limitations should be removed in cases of child abuse, both in criminal cases and regarding claims for compensation from municipalities and other authorities.¹⁰⁵ An amended legislative proposal was enacted on 8 February 2018. Both the Red-Green Alliance and the Danish People’s Party had suggested that the change regarding claims for compensation from municipalities and other authorities would apply retroactively. Facing the threat of being voted down in Parliament, the Government accepted this change in spite of discarding it earlier in the process. Although this was a general reform, explicit references were made to the campaign for an official apology. In his pleading for the amendment in Parliament, Rune Lund, MP for the Red-Green Alliance, stated that this was a victory for the Godhavn Boys.¹⁰⁶ Two months later, Poul-Erik Rasmussen announced that he could not afford to proceed to the Supreme Court (Højesteret), and that he would continue the political campaign for an official apology.¹⁰⁷

Concluding remarks

The dilemma of retroactive responsibility for historical injustices was handled differently in the two countries studied in this article. A political solution was chosen in Sweden: an official apology and economic compensation ‘ex gratia’. From the state’s perspective, this was an acknowledgment of moral responsibility to provide reparations for the victims, without it accepting liability. In Denmark, representatives of the government have since 2011 argued that politicians today cannot be held responsible for what individuals have done in the past. In the 2016 debate analyzed here, more opposition parties than before supported an official apology to care leavers, with arguments similar to the official motivation for state redress in Sweden. Proponents of the apology did not call for a re-evaluation of previous legislation according to today’s moral framework. Their argumentation was rather based on examples of acts that had been illegal when they were committed. The issues of responsibility and redress were however referred to the courts – on grounds of principle during the parliamentary debate, and in practice through the 2018 law reform cancelling statutes of limitations retroactively in child abuse cases.

Beyond this overarching difference, there are similarities in how distance in time was debated in the two countries. The effort to create a break between the past and the present was most explicit in the argumentation against the proposed official apology in Denmark. In effect, the Swedish process also created a ‘modernist disjuncture’. While the Abuse and Neglect Inquiry adopted a contemporary view, using the UNCRC as the normative framework when documenting abuse, the Redress Inquiry opened for a more historicising approach, and suggested that the standard of living at the time should be taken into account when establishing whether an applicant had suffered severe forms of abuse and neglect. Further on, in the legislative process, the government put even more emphasis on changing ideals about what constitutes a good childhood, using the historicising approach as an argument for a restrictive interpretation when determining eligibility for compensation.

In both countries, the very existence of historical knowledge about abuse in out-of-home care for children, produced by commissions of inquiry or commissioned historical research was used as argument against state redress. When an issue is the subject of historiography, this can in and of itself be used as an argument that it belongs to the past. But the content of these reports were also used by persons who argued for state redress. In the Swedish case, the documentation of ‘memories of offence’ by the Abuse and Neglect Inquiry served as proof that abuse had taken place on a large scale, and was used to motivate subsequent proposals for state redress. In the Danish case, specific examples of abuse, documented in the Godhavn report, were cited by proponents of an official apology. During the February 2016 debate, there were also many explicit references to the presence of these memories in the present – most clearly by referring to the physical presence of care leavers in the parliamentary hall.

There is an inherent paradox in efforts at providing state redress: while official apologies and other forms of reparations are premised upon the notion that past injustices have consequences for contemporary society, they can also serve the purpose of creating distance in time, by positioning these injustices firmly in the past. This distancing effect was explicitly mentioned in the argumentation for state redress in both countries. Furthermore, a time limit was set in the Swedish redress scheme with the motivation that the temporary law should not infringe on the regular judicial system. As a result, persons who were placed in care after 1980 and not allowed to pursue their case in court due to statutes of limitations, could not receive any compensation. Thus the temporary law, with a fixed cut-off date, meant that abuse in institutional settings was constructed as something belonging to the past. By contrast, Denmark has opened a theoretical possibility to take redress claims to court, regardless of when the abuse took place. While it remains to be seen how this will play out in practice, not least because of the costs for taking legal action and difficulties to present evidence of abuse and neglect that took place decades ago, in principle this means that no break in time is created. Rather, this solution emphasizes continuity and opens for future redress claims by persons placed in care today.

Acknowledgements

I would like to thank participants in the workshop “Compensating the Past: International Approaches to Redress Schemes for Historical Child Abuse”, Norrköping, 10–11 november, 2016, for valuable discussions. I also wish to thank participants in the Human Rights Studies research seminar at Lund university and the two anonymous reviewers of this article for constructive comments and suggestions.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Notes on contributors

Malin Arvidsson

Malin Arvidsson holds a PhD in History from the University of Örebro, Sweden. Address: Department of History, Lund University, Lund, Sweden. [email: [email protected]]

Notes

1 Winter 2014, 4.

2 Simonsen and Pettersen 2015, 114–115.

3 Arvidsson 2015.

4 Villadsen 2018.

5 For a further discussion about the ’retroactivity dilemma’, see Arvidsson 2016, 54.

6 The Danish political process is briefly described in Rytter and Knage Rasmussen 2015. Regarding Danish care leavers’ memory work, see Grønbæk Jensen 2019.

7 Villadsen 2018. See also Villadsen 2013.

8 Olick 2007.

9 Sköld & Swain 2015, 4.

10 Sköld 2015, 24.

11 Studies about Norway include Pettersen 2010, Studsrød 2012 and Simonsen & Pettersen 2015. The Swedish process has been studied in Sköld, Foberg & Hedström 2012, Arvidsson 2015, Arvidsson 2016 and Sköld & Sandin 2016. Sköld 2016 is a comparative study and thus an exception.

12 The analysis of the Swedish case is based on my PhD thesis, Arvidsson 2016.

13 Bevernage 2012, 13.

14 Bevernage 2010, 115–116.

15 Ludi 2012, 8–9.

16 Villadsen 2013.

17 Nonbo Andersen 2017, 223–225.

18 Winter 2014, 39.

19 Winter 2014.

20 Winter 2014, 29.

21 Miller 2001.

22 Torpey 2006; Nobles 2008.

23 Arvidsson 2016.

24 Arvidsson 2016, 96– 104.

25 Arvidsson 2016, 140–142.

26 Arvidsson 2015, 147–154. The workings and decisions of the Swedish Redress Board (Ersättningsnämnden) is the subject Sköld, Sandin and Schiratzki's article in this theme volume.

27 Rytter and Knage Rasmussen 2015.

28 Rytter and Knage Rasmussen 2015.

29 Questions to the Minister of Social Affairs from Özlem Sara Cekic. Socialudvalget 2010–11, SOU alm. Del Samrådsspørgsmål AV, 13 May 2011 and Socialudvalget 2010–11, SOU alm. Del Samrådsspørgsmål AW, 17 May 2011.

30 Villadsen 2013, 211.

31 Folketinget 2011–12, § 20-spørgsmål S 1774 ‘Om Godhavnsrapportens konklusioner om misbrug af børn, Pernille Skipper, Ø, to Minister of Social Affairs and Integration, Karen Hækkerup, A, January 20 2012; Endeligt svar på spørgsmål S 1774, Karen Hækkerup, January 27, 2012. Åbent samråd om Godhavnsrapporten, 9 June 2011.

32 Folketinget 2011–12, § 20-spørgsmål S 1776, Om Godhavnsrapportens konklusioner om misbrug af børn, Pernille Skipper, Ø, to Minister of Social Affairs and Integration, Karen Hækkerup, A, 20 January 2012.

33 Endeligt svar på spørgsmål S 1776, Karen Hækkerup, A, 27 January 2012.

34 A revised version of their official report was published as the book På kanten af velfærdsstaten. Anbragte og indlagdte i dansk socialforsorg 1933–1980 and launched on 12 November 2015 in the presence of care leavers. Social- og Indenrigsudvalget 2015–16, SOU Alm. Del Bilag 19, ’Invitation til reception i anledning af bogudgivelse’.

35 Københavns Byret, ‘Dom i Godhavns-sagen’, Domstol.dk, 23 April 2015.

36 Beslutningsforslag B 55: Forslag til folketingsbeslutning om en officiel undskyldning til personer, der har været misrøgtet på statens sociale institutioner, by Pernille Rosenkrantz-Theil, A, Christine Antorini, A, Mette Frederiksen, A, and Orla Hav, A, 22 January 2016.

37 Folketinget 2015-16, 54 møde, 12 February 2016, § 2.

38 Folketinget 2015-16, 54 møde, Susanne Eilersen, O, 14–15.

39 Damløv, Louise, Søs Novella, Mette Hybel & Heidi Skibsted, ‘Poul Erik blev mishandlet på børnehjem: Nu kommer historien i biografen’. DR.dk, 10 April 2016, Faurholt, Martin, ‘Historiker om Godhavn-overgreb: Det skete også på mange andre børnehjem’. DR.dk, 21 April 2016, Damløv, Louise & Søs Novella, ‘Lars Mikkelsen: Politikerne bør sige undskyld til børnehjemsofre’. DR.dk, 11 April 2016.

40 Folketinget 2016–17, §20-spørgsmål S 934, from Pernille Skipper, Ø, to Mai Mercado, 20 March 2017, Svar på spørgsmål S 934, 28 March 2017.

41 Thomsen, Stine, ’Godhavndrengene i retten i dag: Alle skal vide, at sådan behandlar man ikke børn’, DR.dk, 17 October 2017, Thomsen, Stine, ’Historiker: Systematiske overgreb fandt sted på mange børnehjem’, DR.dk, 17 October 2017, Mette Richardt, ’Godhavndrengene i retten: Vi har vundet under alle omstændigheder’, DR.dk, 17 October 2017, Dahlin, Ulrik, ’Østre Landsret vurderer, om 50 år gamle overgreb på Godhavnsdrengene er juridisk forældede’, Information, 17 October 2017, Dahlin, Ulrik, ’Begmand til Godhavnsdrengene i Østre Landsret’, Information, 15 November 2017.

42 Folketinget 2017–18, Beslutningsforslag B54, Forslag till folketingsbeslutning om at give en officiel undskyldning til tidligere beboere på de 19 børnehem beskrevet i Godhavnsrapporten fra 2011, by Finn Sørensen, Ø, Pelle Dragsted, Ø, Christian Juhl, Ø, Jesper Kiel, Ø and Rune Lund, Ø, 17 December 2017.

43 Debate in Folketinget 6 February 2018, § 9) 1. behandling af beslutningsforslag nr. B 54.

44 Dir. 2006:75.

45 SOU 2009:99, 43, SOU 2011:61, 132.

46 SOU 2011:61, 285–308.

47 Dir. 2010:15.

48 Arvidsson 2016, 148–149.

49 Remissyttrande från Samhällets Styvbarn, 11 May 2011. Socialdepartementet, S2011/1550/FST.

50 Ramberg, Tomas, ’Fredrik Reinfeldt mot oviss höst’. Ekots lördagsintervju, http://sverigesradio.se, 10 September 2011.

51 Larsson, Maria, ’500 miljoner satsas för att skydda barn i socialvården’, DN.se, 13 September 2011.

52 Riksdagens protokoll 2012/13:20, § 6, 7 November 2012. The 1980 time limit was however questioned by MP:s Margareta Larsson (SD), anförande nr 6, and Eva Olofsson (V), anförande nr 16.

53 Lagrådets yttrande ‘Ersättning av staten till personer som utsatts för övergrepp eller försummelser i samhällsvården’, 23 May 2012, 6–7, Interpellation 2012/13:363, Vanvård av barn efter 1980, av Hillevi Larsson (S) till Maria Larsson (KD), 3 April 2013, Motion 2013/14:So566 Vanvårdade som får avslag av Ersättningsnämnden, Margareta Larsson (SD), 3 October 2013.

54 Rytter 2011, 30.

55 Vaczy Kragh, Grønbæk Jensen, and Knage Rasmussen 2016, 13, 18.

56 Folketinget 2015-16, 54 møde, Karen Ellemann, V, 3; Susanne Eilersen, O, 5.

57 Folketinget 2015-16, 54 møde, Karen Ellemann, V, 5. All translations from Danish and Swedish are mine, unless stated otherwise.

58 Folketinget 2015-16, 54 møde, Karen Ellemann, V, 2.

59 Folketinget 2015-16, 54 møde, Susanne Eilersen, O, 5.

60 Folketinget 2015-16, 54 møde, Mette Frederiksen, A, 14.

61 Folketinget 2015-16, 54 møde, Torsten Gejl, Å, 12.

62 Folketinget 2015-16, 54 møde, Trine Torp, F, 4.

63 Folketinget 2015-16, 54 møde, Mette Frederiksen, A, 13–14, citation p. 14.

64 Folketinget 2015-16, 54 møde, Pernille Skipper, Ø, 9.

65 Folketinget 2015-16, 54 møde, Trine Torp, F, 12.

66 Folketinget 2015-16, 54 møde, Mette Frederiksen, A, 14.

67 Folketinget 2015-16, 54 møde, Pernille Rosenkrantz-Theil, A, 2.

68 Folketinget 2015-16, 54 møde, Mette Frederiksen, A, 13–14.

69 Winter 2011, 806.

70 Dir. 2006:99, 43.

71 SOU 2009:99, 97–114, 123–125.

72 SOU 2011:9, 65, 104.

73 SOU 2011:9, 85–86, 105–107, 109–111.

74 Winter 2014, 191–192.

75 SOU 2011:9, 170.

76 SOU 2011:9, 140–145.

77 Regeringens Lagrådsremiss, Ersättning av staten till personer som utsatts för övergrepp eller försummelser i samhällsvården, 10 May 2012, 18–24.

78 Arvidsson 2016, 168–170.

79 Sköld and Sandin 2016.

80 Folketinget 2015-16, 54 møde, Pernille Rosenkrantz-Theil, A, 8.

81 Folketinget 2015-16, 54 møde, Pernille Rosenkrantz-Theil, A, 2, Jeppe Brus, A, 4, Benny Engelbrecht, A, 4, Pernille Skipper, Ø, 9, Trine Torp, F, 12, Mette Frederiksen, A, 13–14.

82 Folketinget 2015-16, 54 møde, Pernille Skipper, Ø, 9.

83 Folketinget 2015-16, 54 møde, Pernille Rosenkrantz-Theil, A, 8.

84 Folketinget 2015-16, 54 møde, Torsten Gejl, Å, 12.

85 Folketinget 2015-16, 54 møde, Trine Torp, F, 12.

86 Rytter and Knage Rasmussen 2015, 100–101.

87 Folketinget 2015-16, 54 møde, Pernille Rosenkrantz-Thiel, A, 5, Mette Frederiksen, A, 16.

88 Folketinget 2015-16, 54 møde, Susanne Eilersen, O, 5.

89 Folketinget 2015-16, 54 møde, Mette Abildgaard, C, 13.

90 Folketinget 2015-16, 54 møde, Laura Lindahl, I, 10, 12.

91 Folketinget 2015-16, 54 møde, Jan E. Jørgensen, V, 7.

92 Folketinget 2015-16, 54 møde, Mette Abildgaard, C, 13.

93 Villadsen 2018.

94 Folketinget 2015-16, 54 møde, Karen Ellemann, V, 5.

95 Folketinget 2015-16, 54 møde, Jan E. Jørgensen, V, 7, 8.

96 Folketinget 2015-16, 54 møde, Pernille Rosenkrantz-Theil, A, 8.

97 Folketinget 2015-16, 54 møde, Susanne Eilersen, O, 6; Mette Abildgaard, C, 13.

98 Folketinget 2015-16, 54 møde, Susanne Eilersen, O, 5.

99 Villadsen 2013.

100 Nonbo Andersen 2017, 216–220.

101 Folketinget 2015-16, 54 møde, Benny Engelbrecht, A, 4.

102 Folketinget 2015-16, 54 møde, Jeppe Brus, A, s. 9.

103 Folketinget 2015-16, 54 møde, Jan E. Jørgensen, V, 9.

104 Folketinget 2015-16, 54 møde, Susanne Eilersen, O, 5, Mette Abildgaard, C, 13.

105 Folketinget 2017-18, Lovforslag L31, by Søren Pape Poulsen, C, 4 October 2017.

106 Debate in Folketinget 8 February 2018, § 9) 3. behandling af lovforslag nr. L 31.

107 Søndergård Ingvorsen, Emil, ‘Godhavnsdreng dropper at få sag for Højesteret’, DR.dk, 3 April 2018.