Sleep rape conviction set aside for flawed reasoning

A man was indicted for "sleep rape" (sexual assault while the aggrieved person is asleep). The central evidence in the case was the aggrieved peron's testimony.

In the District Court, the defendant was acquitted by a divided ruling. The majority – the two lay judges – found that it could not be ruled out that the intercourse began voluntarily while the aggrieved person was still awake. According to the majority, this was consistent with her own testimony, as she remembered little of the incident. The professional judge determined that there was no reasonable doubt regarding the question of guilt and voted for a conviction.

In the Court of Appeal, the defendant was unanimously found guilty of sleep rape. The Court of Appeal largely relied on the same evidence as the District Court, but made a different assessment thereof. 

The Supreme Court set the Court of Appeal's judgment aside due to flawed reasoning, pointing out that the Court of Appeal did not sufficiently explain its view on the central point that led to the acquittal in the District Court, namely whether the aggrieved person could have been awake when the intercourse began. The case was referred back to the Court of Appeal for a new hearing.

The ruling provides general guidance on the procedure for assessing the evidence and on what can be emphasised in a credibility assessment.

Read the judgment from the Supreme Court (PDF)

Area of law: Criminal law. Section 291 of the Penal Code. Sleep rape. Evaluation of evidence and credibility. 

Key paragraphs: 24–29, 33–39, 50–54, 61

Justices: Webster, Bull, Falch, Thyness, Sivertsen