The penal provision on sexual assault covers surprise cases

The defendant, who had met a woman at a nightclub, after they had danced together and had close contact, had held the woman and quickly inserted a finger into her vagina from behind. The Supreme Court's majority of three justices, as opposed to the majority of the Court of Appeal, found that the act was covered by section 291 (b) of Penal Code as sexual assault. The Court assumed that the wording of the provision covered cases where the sexual activity occurred so suddenly and unexpectedly that the aggrieved party had in fact no time to resist. The preparatory works and the legislative history suggested the same. It was also emphasised that the purpose of the penal provision is to protect against involuntary sexual activity. The fact that the parties had had voluntary physical contact prior to the sexual act could not give any other result. Two justices dissented and found that the offence was covered by section 297 of the Penal Code on sexual act performed without consent. The judgment of the Court of Appeal was set aside. Dissenting opinions 3-2.

Read the whole judgment (Norwegian only)

Area of law: Criminal law. Sexual offences. Section 291 (b) of the Penal Code. 

Key paragraphs: 37, 42–43

Justices: Øie, Normann, Arntzen, Stenvik og kst. dommar Elsheim