Section 266 of the Penal Code on harassing conduct was not applied to a child who witnessed violence

The defendant had physically assaulted his spouse, first by hitting her in the bedroom, and then by grabbing her hair and banging her head against either a wall or a cabinet in the hallway. The spouse’s 15-year-old daughter heard the commotion and went to see what was happening. She then witnessed the incident in the hallway.

In addition to being charged with assaulting his spouse, the defendant was also charged under section 266 of the Penal Code for harassing conduct, based on the fact that a child had witnessed the violence. The District Court acquitted the defendant on all counts. In the Court of Appeal, the defendant was convicted of violence against his spouse but acquitted of violating section 266, as the court found the provision inapplicable. The presence of a child was instead considered an aggravating factor in the sentencing for the violence. The prosecution appealed to the Supreme Court, challenging the application of the law. 

The Supreme Court concluded that section 266 of the Penal Code may generally not be applied in cases where violence is committed in the presence of others. Although such situations may fall within the wording of the provision, the preparatory works indicate that the provision is intended to target actions more directly aimed at the aggrieved party. The established practice has been that the presence of others during acts of violence is treated as an aggravating factor in sentencing. This also applies when children are present, see section 77(l) of the Penal Code, which instructs that it should be considered an aggravating factor when an offense is committed in the presence of children under 15 years of age. Applying section 266 to situations where someone merely witnesses violence would significantly expand the scope of the provision.

However, exceptions may be made for cases involving violence in close relationships, as such acts are often also intended to affect the person witnessing the violence. That was not the case here.

The judgment helps clarify the scope of section 266 of the Penal Code concerning harassing conduct.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Area of law: Criminal law, section 266 of the Penal Code 

Key paragraphs: Paragraphs 46–52

Justices: Bull, Høgetveit Berg, Steinsvik, Hellerslia, Sivertsen