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The Oslo District Court found that there were so many extenuating circumstances in the violation that they fell far short of the usual minimum sentence. – They wouldn’t have thought like that if I were a woman and not gay, says rape victim Tor-Erik Håvie (32).
The Oslo District Court believed that the convicted person was joking and that there was never anything sexual in the rape. Among the arguments in favor of a low punishment was also that they were both part of a gay scene where so-called “cock slapping” and hard parties are common.
– I didn’t experience it as a joke, says Tor-Erik Håvie, 32, to Nettavisen. He had expected the convict to receive lenient punishment.
– I really appreciate that you have admitted your criminal guilt. It has made it much easier for me to appear at trial, says Håvie.
However, he reacts to the fact that the court was far below the usual level of punishment for rape. He does not believe that the court would have taken the incident lightly, if it were about a girl who had fallen asleep on the sofa at the party and had been abused, like him.
The prosecution had filed a lawsuit for three and a half years of unconditional prison. The normal penalty for this type of violation is four years and the minimum penalty is three years. The 30-year-old was sentenced to three years in prison, where two of them were conditioned. Therefore, it must be one year old. In addition, he will pay 150,000 kronor in compensation to Håvie.
– My client has accepted the verdict today and will not appeal. He deeply regrets both the action itself and what it has exposed the victim, defenseman Bernt Heiberg tells Nettavisen.
The incident
The incident occurred on a Saturday morning in November 2019.
– I want to stand out with my name and my photo because no one, neither women nor men, should have to be ashamed of having suffered sexual abuse. This has affected me and I choose to deal with it, says Håvie.
Rape during sleep: girl (17) raped on nachspiel by unknown men while her friend was watching
The 30-year-old and a friend had been in town the night before and wanted to continue the party at the nachspiel. At dawn, they ended up having a private party with several other men. Among them was Håvie.
There was a good tone among everyone at the party. In the morning, Håvie fell asleep on the couch, while the 30-year-old continued the party with three other people throughout the morning. At the time, they were very drunk and were playing poker.
It was at this point that the 30-year-old started teasing Håvie. He put his penis in his mouth while he slept. Everything was photographed with Håvie’s phone. Another party participant filmed the incident and sent the video as a snapshot to Håvie’s girlfriend. The verdict establishes that the incident was short-lived and that the penis was neither erected nor ejaculated. Therefore, it was not defined as “without sexual intent”.
I was surprised
At 13 o’clock on the same day, Håvie and now condemned together went to the bus, on their way home from the party. The 32-year-old was called by his girlfriend and wondered what had happened at the party. He had seen the video and wondered if something had happened.
The district court writes: «The victim wasn’t sure what she meant, so she sent the video she had received from (another at the party), which shows the accused naked from behind. The aggrieved party asked the defendant if something had happened that he was not familiar with, and the defendant replied that they had “joked with him.” He first realized that he had been (raped) when he discovered the two photos that the defendant had taken with his phone at night. The victim explained that he was shocked and felt abused. Since then, the feeling of being raped has gradually strengthened. He reported the matter on December 19, 2019.».
Recognized violation
Håvie had videos and photos of the incident when he went to the police. The 32-year-old also acknowledged the relationship. Therefore, what happened objectively has not been a problem. The act is covered by the violation clause, which carries a minimum penalty of three years in prison. The normal penalty for putting a penis in the mouth is four years in unconditional prison.
The Oslo District Court writes: «The court is then satisfied that the accused has behaved as described in the indictment and that, judged sober, he has shown the necessary degree of guilt. For the sake of clarity, it is noted that inserting the penis into the mouth equates to rape, writes the Oslo District Court in the ruling».
Shared in view of punishment
It was in the discussion about the sentence that the judges in the case could not agree. The two co-judges thought that the normal level of punishment should be deviated. The reason for this was that there was no sexual motive for the rape. The penis was not erect. The abuse was short-lived. The intention was to be funny and not rape.
«It is the majority’s assessment that it is a pure impulsive act committed in a state of excessive drunkenness and as a joke, and where the judgment of the accused was seriously affected. Although this does not affect the question of guilt, the majority of the court believes that it affects the criminality of the act “, says in the trial.
The justices also noted that the party culture in the gay community is harsh and extreme, and that the action must be viewed in that light.
Furthermore, the majority’s assessment is that the defendant’s action cannot be separated from the “mood” at tonight’s party, as well as what is the common party culture in this specific gay scene, of which the accused and the offended are part. Most refer in particular to the explanation to (a witness who was at the party) that it is not at all uncommon for so-called “slapping” to take place at parties (ie slapping the penis in someone’s face) , and otherwise it is a relatively harsh and extreme party culture » says at trial.
Furthermore, the majority of the judges expressed their opinion: «The bad joke has had far-reaching consequences for both the accused and the offended. The defendant has gone to bed “poisonous mushroom” and obviously understood the seriousness of the case. A moment of thoughtlessness and elements of bad judgment have led to his future being significantly ruined as well. Therefore, there are no individual preventive considerations that justify a prolonged sentence.».
– Trivialize own behavior
Håvie responds that the description of an extreme environment is used in a mitigating direction in the judgment.
– If there is a party as extreme in the gay community as the verdict says, then the verdict should send a clear signal that it is not right. Shouldn’t these judgments have an educational effect? he asks rhetorically.
– I experienced that witnesses downplayed their own behavior and that most of the judges have relied on the representation of witnesses from the gay environment. “I’ve never experienced an extreme party culture myself and that ‘slapping’ is common at parties, says Håvie.
He believes, on the other hand, that men who experience rape and abuse are, to a lesser extent, trivialized, and that this is reflected in the attitudes of parts of the gay community. In the NKVTS study «Violence and rape in Norway. A national case study of violence in a life course perspective “, four of the 24 raped men responded that they had reported the affair.
– One of the reasons I checked was that I wanted to talk. There is a lot of abuse in the environment that never comes to light and that is trivialized in the environment. I wanted to send a signal that it is not okay. I wanted to go ahead and say that men can be raped too. So it is sad that the court is helping to downplay such incidents, and that lay judges do not listen to professional judges, Håvie says.
The minority would give four years unconditionally
She thinks it reasonable to think that the verdict would have been different if a girl had fallen asleep there on the couch and some boys had “joked” with her.
The main judge of the case, who therefore constitutes the minority, considers that the legislature and the Supreme Court have given clear signals that the punishment for such acts should be the unconditional imprisonment of four years.
Also read: – An assault is an assault, regardless of whether the assailant is a man or a woman
“Although the minority also believe that the act is less serious than normal cases of rape, in part because it is not sexually motivated and is more an expression of extremely poor judgment committed while intoxicated, there are also aggravating circumstances.” says at trial.
The minority point out that there were several present when the abuse occurred, and that photos of the incident were taken that may have gone astray.
Furthermore, the Supreme Court has made it clear that the lack of sexual motivation is not considered an extenuating circumstance. argued the minority.
Defense attorney Heiberg tells Nettavisen that he is happy that the district court has seen the special moments in this case and has conditional on two years of sentencing.
– The use of minimum sentences in criminal law is problematic because there is a risk that the unique peculiarities of cases may not be taken into account when sentencing. The use of a minimum sentence, without the court at the same time having sufficient opportunity to condition parts of the sentence, is very worrying. A partial conditional sentence in this case is a correct result, it says.
The prosecution has not made a decision on whether the verdict will be appealed or not. The matter is being dealt with by the Oslo Prosecutor’s Office.
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