Elsa (27) experienced «no» not being enough

— It shows that young adults understand what rape is.

This says Patricia Kaatee, political advisor in Amnesty.

Even though you might have learned that «sex without consent = rape», this is not how it is according to Norwegian law. According to a survey conducted by Sentio on behalf of Universitas, it seems like Norwegian students want to change that law: 75 percent of the students answered that they are positive to criminal law saying sex without consent is rape.

— The older generation often latch onto the idea that rape is something that happens «out there», in a dark park and by violent means, where a woman is forced by a man to have sex. This is an outdated understanding of what rape is, the reality is different, Kaatee says.

In 2015, law student Elsa Faleide (27) experienced a sexual assault that today falls outside of the rape provision. In the NRK documentary series «Innafor», she has been open about her story.

When she pressed charges she was told that the case was dropped. The police did not find that a crime, according to the rape paragraph, had occurred.

— It was very tough to get that answer. I felt like I didn’t have any right to feel violated, she says to Universitas.

Froze up

Faleide had just started her degree in Bergen when she got to talking with a seemingly nice guy at pre-drinks. They hit it off. But this was all that would happen, Faleide had decided. She had also said this clearly.

She said no several times, but her no was not accepted. She says she was exposed to both sexual acts and penetration, which she had clearly not consented to.

She experienced a semi-freeze situation.

— It’s difficult and complicated to understand situations where you freeze up. It’s not the case that you simply either freeze or you don’t, she says.

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The assaulter did not use violence, and Faleide experienced being passive at times.

— I felt trapped in the situation, and I was scared of what would happen if I started physically resisting. I therefore became completely numb. At the same time, I was eventually able to break out of it and verbally resist.

The time after the assault was characterised by a strong feeling of shame and social isolation. She decided to not let it happen again, and after a bit more than two years she pressed charges.

— I was prepared for the case to be dropped due to lack of evidence, but wanted to try. I wanted to stand up for myself, and send a signal to he who did it that it was not okay, she says.

Faleide describes health consequences after the case was dropped. She had to take sick leave from work for a year and it became harder to complete her studies, due to depression. She believes that the law as it is today needs to be changed.

— The law sends a signal that sexual intercourse without consent is okay. This does not reflect what the society believes, she says.

— Consent has to be at the core

According to Amnesty and the legal help organisation Legal Aid for Women (Jurk), Faleide’s story is one of many.

— Rape can happen to anyone, and it’s therefore good that so many students are engaged in the question, says Veronika Taran Wiese, professional advisor in Jurk.

Both Jurk and Amnesty think that sex without consent should be considered to be rape, and this is what the core of the debate is about: Sex without consent is not defined as rape in Norwegian law. Although sexual intercourse without consent can be punished, they believe it should be expressed by the law that sexual intercourse without consent is considered rape, and should therefore be covered by the rape provision (see fact box).

— Voluntariness and consent should be at the core of the definition of rape. We can’t only include a few selected conditions that exclude voluntariness, such as violence or unconsciousness. Criminal law must put in place a principle that it is the lack of voluntariness that defines a sexual assault, says Amnesty advisory Kaatee.

Amnesty points to a Swedish study where 70 percent of women who contacted the rape centre in Stockholm said they froze up during the assault, like Faleide did. Power imbalance and intoxication are other examples of factors that make it difficult to say no, according to Kaatee.

Lack of legal protection

Kaatee says that those who experience rape can have long-term health consequences, both physically and mentally.

— Whether, or to which extent, you get serious health consequences from rape has nothing to do with the way in which you lost the right to decide over your own body, she says and adds:

— It’s not the potential violence that is used during the assault which does the most harm, it is the serious integrity violation, which happens regardless of if you were sleeping or if you fought.

Jurk completely agrees with Kaatee.

— Sex without consent is a serious violation which you do not have legal protection against. It is experienced as severe for those who go through it, and they feel alone, Wiese says, and continues:

— The provision that bans sexual acts without consent is aimed at touching with a sexual tone, such as kissing or touching over clothes. Sex without consent is clearly different than this, it is more brutal and severe, and should therefore be covered by the rape provision.

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She believes that such a law will not only lead to better legal protection for the offended, but also changes at the societal level.

— Laws have more effects than just prosecution. They have an important signalling effect and can contribute to norms for people’s attitudes. The goal is not for more people to be in prison, but that fewer rape, Wiese says.

Minimum sentence needs to be removed

Anne Robberstad, Law professor at UiO, thinks it is difficult to know what most people today consider as rape.

— Amnesty thinks that all involuntary sex is rape in people’s eyes today, I’m certain this is not correct. But none of us really know what people think of it, she says and continues:

— I think many think like me, that rape is about violence, threats and force. To put this in the same category as any case, also when it is about involuntary intercourse, creates a wide scale from the least to most brutal.

Robberstad is opposed to introducing a new addition about consent in the rape provision.

— In my opinion, we already have a consent law, but it is not good enough, she says.

She refers to §297 «Sexual act without consent».

Robberstad says it has been unclear what the word «act» entails among lawyers. Legally, it also entails sexual act, sexual relations and intercourse, she says.

Still, she believes that the provision should be supplemented with sexual relations and intercourse to remove possible doubts.

Late last year, Robberstad wrote a chronicle where she outlines what a new §297 could look like.

She refers to the chronicle and points out some things that the paragraph lack that can be changed in the law:

— The lack is that it does not give automatic right to legal counsel. In addition, changes can be made in compensation law, when it comes to legal protection for compensation. One can also consider the punishment frame and statute of limitations, but as I see it this is not a big question.

— I believe that these changes are what should be done, rather than doing what in my eyes seem like watering down the rape provision, the Law professor says.

— Reckless

Robberstad comments on the numbers from Universitas’ survey by questioning whether the students who answered have thought about what the punishment would be.

— The rape provision as it is today covers very brutal acts, and gives a very significant punishment, with a minimum sentence of three years. There are many situations where I believe that everyone who were shown some of these situations would say the punishment was too harsh.

She thinks that this is also true for students.

Robberstad thinks the minimum sentence should be removed, independently of the consent question.

— I’m certain that there have been many charged with rape who were acquitted due to the severe minimum punishment. Especially lay judges, who aren’t lawyers, believes that what he did was wrong or ugly, but that he shouldn’t be in prison for three years because of it. Then they can answer no to the question of guilt, even though they think that it was rape. The minimum punishment, in my opinion, is very damaging, Robberstad concludes.

— When Amnesty, but also Jurk, advocate for placing the consent rule in the rape provision without also reflecting on the minimum sentence and the consequent punishment, I think it is reckless.

She says she can’t take that position seriously if you don’t think through what it means to lock up a person for several years.

Robberstad clarifies that the consent movement is positive, but that it should think more about what it is asking for:

— You can’t just yell out for criminal laws without thinking about what the consequences would be.

Wiese in Jurk acknowledges that the minimum punishment is a challenge, but that the most important thing in this debate is whether sex without consent should be labelled as punishable or not.

Kaatee thinks the minimum punishment is more flexible than what Robberstad implies.

— Criminal law gives opportunity to adjust the level of punishment through weighing aggravating and mitigating circumstances.

She says that Amnesty is not taking a position on whether there should be a firm minimum punishment for rape in criminal law.

— But we will highlight that both general preventative and individual preventative considerations imply that the punishment level for sexual offences should be high.

«Cautious for»

Jo Stigen, Law professor at UiO, thinks that the numbers from Universitas’ survey signal that changes must be considered.

— I think it is important to call things by the right name. In this regard, I think it is interesting to hear that three out of four students consider sex without consent to be rape. Then maybe us older people need to reconsider our view of it.

Stigen says he is «cautious for» a consent law. He thinks it is natural to look to the experiences from our neighbouring countries, who have implemented similar laws, and that what Norway chooses to do is crucial.

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But like Robberstad, Stigen is clear about sex without consent being covered by Norwegian criminal law today.

— Having sexual intercourse with someone who has not consented to it is of course punishable, but §297 is aimed at acts, and not intercourse. So, it is important to be aware that we’re not talking about criminalisation in this debate. It is about placing an already punishable act in a possibly more appropriate place – a sort of upgrade, Stigen says.

He believes there are more than one way in which one can more clearly include sexual intercourse without consent in criminal law. An extension of §297 is a possibility, rather than including the condition of consent in the rape provision.

— §297 would be a lacking provision, because you have to punish sexual intercourse as a sexual act.

The paragraph can be extended by for instance an addition connected to sexual intercourse, with a higher frame of punishment, he thinks. Though this will cause the law to more clearly reflect the severity of such crimes, he does not think it will necessarily resolve the core of the consent law debate.

— If more and more people today view sexual intercourse with someone who does not consent as rape, there is a language problem in the law.

Stigen believes it boils down to principle:

— In the midst of this technical discussion it is important to reflect on what we are really talking about: It’s about sleeping with someone who doesn’t want to, and that’s pretty extreme.

— It is a very severe violation, so why not call it rape, he concludes.