Sexual assault conviction set aside for flawed reasoningnelse
Supreme Court judgment 26 June 2025, HR-2025-1237-A, (case no. 25-030238STR-HRET), criminal case, appeal against Borgarting Court of Appeal's judgment.
A (Counsel John Christian Elden) v. The Public Prosecution Authority (Counsel Esben Kyhring)
A man was indicted for sexually assaulting a woman after a party. According to the indictment, the woman experienced a “freeze reaction” that rendered her incapable of resisting the intercourse.
In the District Court, the man was acquitted by a majority. The two lay judges found that it could not be ruled out that the intercourse was consensual, as the defendant claimed. The professional judge dissented, finding no reasonable doubt as to the defendant’s guilt, and voted for conviction.
The Court of Appeal unanimously found the man guilty of sexual assault. It concluded that the woman had been unable to react because she had “frozen,” and that the man had understood this.
The Supreme Court set the Court of Appeal's judgment aside due to flawed reasoning. The Supreme Court emphasised that the threshold for a person to be “unable” to resist sexual activity is high. Freeze reactions must be assessed in the same manner as other conditions that may impair the ability to resist, such as sleep, intoxication or illness. The Court of Appeal’s brief description of the freeze reaction did not demonstrate whether the statutory criteria were met. The therefore had to be reconsidered by the Court of Appeal.
The judgment clarifies the threshold for when a freeze reaction may fall within the scope of the sexual assault provision in the Penal Code.
Read the judgment from the Supreme Court (Norwegian only) (PDF)
Areas of law: Section 291 of the Penal Code. Requirements for reasoning.
Key paragraphs: 27, 28, 35-37, 51, 52
Justices: Øie, Høgetveit Berg, Thyness, Stenvik, Sivertsen