Rape is the next decade’s judicial murder, says lawyer Mette Yvonne Larsen. She is concerned that the standard of proof is being lowered in these cases and that the innocent are being convicted.

Larsen is defending the accused TV2 journalist (28) of rape who was sentenced to four years in prison last autumn for so-called sleep rape by a colleague. When the appeal case went before the Borgarting Court of Appeal in May, an unusual thing happened in that the prosecutor filed a motion for acquittal.

As the case stands in the Court of Appeal, after a thorough assessment of the evidence, we must request an acquittal, said state attorney Irlin Irgens in his proceedings on 26 May.

Sleep rape is defined by the fact that the victim is not conscious due to sleep or intoxication, and is therefore unable to protect herself.

In the district court, the journalist was sentenced to four years in prison. The 28-year-old was also sentenced to pay NOK 223,000 in restitution.

At the time, Larsen believed that the verdict was wrong, that the court had overlooked the strict evidence requirement in criminal cases. This “unfortunately [is] a significant problem in these cases.”

The journalist has never pleaded guilty to a crime.

Judgement in the appeal case is expected today, Monday. As the prosecution is in favour of an acquittal, the TV2 journalist will by all accounts be acquitted.

Evidence not significantly changed

Lawyer Larsen believes that the evidence in the Court of Appeal differed somewhat from what was presented to the district court, but not significantly.

We had obtained a forensic toxicology report, which left open that the victim had had complete amnesia, but that she appeared completely normal. The second was that we were able to carry out a reconstruction which showed that the victim was not telling the truth about it being possible to flirt under a table in the apartment. In addition, we had a witness psychologist who commented on the memory of witnesses who are intoxicated.

So the case was in a slightly different position, but it is also down to a prosecutor who does their job and concludes that the evidence simply does not hold up. Then you have to request for an acquittal and that was good of her.

You said “a somewhat different picture of evidence”, did it differ so much from the picture of evidence in the district court that it could justify different outcomes in the district court and the court of appeal?

Several errors in the district court judgement

No, I think it was wrong to go for judgement there, and there were a number of errors in the judgement. Among other things, the court was wrong in that my client had not told the details from the bedroom from the start; he told all the details already on February 10th. So the district court was wrong. Plus, the court based a different proof requirement than it should, so I think it was the prosecutor who was tidy. She also pointed out that there were several things in the district court judgement that were directly wrong.

Larsen believes that the courts tend to mix the terms “memory” and “condition”.

They think that if people don’t remember anything, then they must have been stupid. Forensic toxicology is not like that and I think it probably had a big impact.

The lawyer refers to the certificate of Jørg Mørland, one of the country’s most experienced forensic psychologists. Mørland was appointed by the Court of Appeal, but was not in the district court case.

He pointed out that it is possible to be in an area where, in terms of blood alcohol level, you appear awake and alert, but you can still have memory loss.

It is not possible to rule out his explanation

Lawyer Larsen emphasises that it was wrong to advocate a conviction in the district court.

It was not possible to rule out his explanation. When one doesn’t remember anything, and the other tells a detailed story, then convicts him of rape when the woman doesn’t remember being raped, it doesn’t work.

What does this say about the Oslo district court’s assessment?

I do believe that the judgement was wrong, but I cannot say that it says anything about the Oslo District Court. I guess it just shows that they assessed the evidence in a different way.

I ask because I have come across several cases of rape in the bedroom that have resulted in several years’ imprisonment in the Oslo district court and then a full, or almost full, acquittal in Borgarting.

– Next decade’s judicial murder

Yeah right. I think these are some of the most difficult cases we have. I think this is the judicial assassination of the next decade. You are emotionally affected by what someone thinks and thinks about what they have experienced. I am afraid that the proof requirement will be lowered.

These sleep rapes have always been very complicated. They previously carried a separate penalty that led to four months in prison. Now you get four years, then you may not have raised the standard of proof well enough, when you suddenly compare this to an ordinary rape case where violence or threats have been used. The rape provision has been given a different content, so perhaps the bar has not been held as high when it comes to whether this can be proven when a person does not remember something. That is the problem.

Consent laws increase the risk

Now it is being discussed politically to introduce a consent act, what significance could that have?

I am very worried about it. Then it must be tested against whether consent was given or not. If someone says no, then it’s no, but to provide evidence of whether someone has consented or not, if both are drunk – it happens that people have sex in a drunken state. I am very worried about what it will lead to in terms of criminal law.

That will increase the risk?

Yes, it will increase the risk of wrongful convictions.