Touching of penis was not an "aggravated sexual act"

A five-year-old child had held and squeezed his stepfather’s naked penis for about 20 seconds, while his mother photographed the incident. The stepfather and mother were sentenced in the Court of Appeal to one year of imprisonment for violating section 299 (c) of the Penal Code on “aggravated sexual acts”.

The Supreme Court has concluded that the incident was not an “aggravated sexual act”, but instead a sexual act against the child under the more lenient provision in section 304 of the Penal Code.

The Supreme Court emphasised the child’s need for protection of his or her sexual integrity in the situation that arose. Even though the stepfather had not initiated the incident, and his passivity was not sexually motivated, the act had a sexual character and was committed without a reasonable purpose. However, the incident was not so serious that it was covered by the provision on “aggravated sexual acts”.

As the child’s caregiver, the mother had a duty to interfere in the situation that arose and is convicted of complicity.

The sentence for both is set to 60 days of imprisonment, and each of them is ordered to pay a compensation of NOK 15,000 to the child.

The judgment provides guidance on the distinction between a sexual act and an aggravated sexual act.

Read the whole judgment (Norwegian only) (PDF)

Areas of law: Criminal law, section 299 (c) and section 304 of the Penal Code

Key paragraphs: 17, 23, 33–34, 40–41

Justices: Falkanger, Ringnes, Thyness, Hellerslia, Stenvik