Judgment from the Court of Appeal on "sleep rape" of newly awake woman was set aside

The Court of Appeal had sentenced the defendant to two years and ten months of imprisonment for violating section 291 (b) of the Penal Code – the provision concerning so-called "sleep rape." The defendant had inserted fingers into the vagina of a woman who was heavily dazed after sleeping. The Supreme Court emphasised that the legal requirement – that the aggravated party is "uncapable of resisting the act" – is strict, but sexual activity with a person who is heavily dazed after sleeping can still fall under the provision. In the individual assessment, a majority of four justices noted that the aggrieved party had perceived being kissed and licked on the cheek and in the ear before the sexual activity took place. This required a more detailed explanation of how she then could have been so dazed that she was incapable of resisting the defendant's acts. It was therefore unclear whether the Court of Appeal had set sufficiently strict requirements for criminal liability, and the majority also missed a broader assessment against the central criterion in section 291 (b). The Court of Appeal's judgment was set aside. Dissenting opinions 4-1.
 

Read the whole judgment (Norwegian only) (PDF)

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

Key paragraphs: 33−35, 39-40

Justices: Øie, Indreberg, Normann, Bergsjø, Steinsvik