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Norway: Supreme Court Finds Passive Father Responsible for Aiding and Abetting Mother’s Physical Abuse of Children

(Dec. 30, 2019) On November 27, 2019, the Norwegian Supreme Court affirmed the conviction of a man for aiding and abetting the gross abuse of a dependent by neglecting to protect the children from their abusive mother, and increased the sentence from two years and six months’ imprisonment to three years’ imprisonment. (Norwegian Supreme Court, HR-2019-2205-A, (Nov. 27, 2019).)

The issue before the court was whether a father can be punished for aiding and abetting (medvirkning) a mother’s physical abuse of her three children through his passivity. (¶ 1.) In a previous, March 2019 decision, the Supreme Court found that contributory liability (medvirkansansvar) for abuse of children required only passivity—a failure to act to prevent or stop—and not that the perpetrator was furthering the original criminal act, which is required of other crimes. (Norwegian Supreme Court, HR-2019-561-A, (Mar.21, 2019).)

Under article 283 of the Norwegian Penal Code (Straffeloven), a person may be held responsible for gross physical abuse in close relationships:

Gross abuse against a person with whom one has a close relationship is punishable with imprisonment for up to 15 years. In determining whether the abuse is gross it should especially be considered whether it has resulted in injury or death, and also

a) its duration,
b) if it has been carried out in a particularly painful manner, or [if the victim] has incurred considerable pain, or
c) if it has been committed against a defenseless person. (§ 283 Straffeloven, Grov mishandling i nære relasjoner.)

In addition, article 15 of the Norwegian Penal Code provides that a person may also be sentenced for “aiding and abetting” (medvirkning) any crime unless [the crime] is specifically excluded.” (§ 15 Straffeloven.)

Circumstances of the Case

From April 2017 to June 2017 the mother of three children physically abused them. The final act of abuse resulted in the death of her daughter, born 2014, on June 26, 2017. (HR-2019-2205-A, ¶ 3.) During this time, “the stepfather, A, was present and observed the use of violence both in the days leading up to June 26, 2017, and earlier, without intervening and preventing the ongoing violence, preventing future violence by contacting the police or child protective services[,] or by preventing the consequences of the violence leading up to June 26, 2017.” (¶ 15.)

Procedural History

The District Court, as the court of first instance, found the father not guilty of gross abuse and of manslaughter. (¶ 7). That verdict was reversed on appeal by the appellate court with respect to the gross abuse of the children (¶ 9), but not with respect to the manslaughter of the daughter, as it was unclear if the father could have prevented the fatal injuries inflicted on the daughter by the mother (¶ 10).

Supreme Court Decision

The Supreme Court defined what characteristics may affect the duty to act, and found that typically the following circumstances determine the duty to act:

  • The severity of the abuse—that is, its scope and intensity (¶ 70)
  • The duration of the abuse—that is, whether the abuse takes place over an extended period (¶ 71)
  • How exposed and vulnerable the child is (¶ 72)
  • The power dynamics between the perpetrator and the complicit person (e.g., whether the person abusing the children is also abusing the other parent) (¶ 73)
  • Whether there are special reasons to intervene (¶ 74)
  • What tools are available for the a person to intervene (¶ 75)

Thus, a person who has the duty to care for a child (omsorgsansvar) has the duty to act and can be punished for exercising passivity, or for not taking sufficient action—that is, not doing enough. (¶ 77.)

Application of the Rule

In the case at hand, the children had just arrived in Norway when the assaults started and had no real relationship with the mother, who they had not lived with for several years, making them particularly vulnerable. In addition, the Court found that the stepfather was not physically or otherwise in an “inferior position” (underlegen) to the mother. The Supreme Court did note, however, that the stepfather may have felt that he was subject to the mother’s good will, as he did not have a residence permit, but the Court concluded that, even if true, this circumstance did not give the father the right to put his own interests ahead of those of the children. (¶ 80.) Thus, the court concluded, he had a duty to act. (¶ 81.) The Court also noted that the measures he took to end the violence were not sufficient to meet that duty because the assaults continued. (¶ 81.)

The Court further noted that, despite the stepfather not knowing much Norwegian, he had several options other than physically trying to stop her, which he did not do. These options, which he also did not pursue, included those that the Appeals Court mentioned in its decision: “He could have asked for help from the Somali community [of which he was a member;] he could have counseled the children to seek help themselves, for instance, in school by telling someone about the situation[;] and at the least he could have turned to the public institutions that he was familiar with, and had contact with, such as the local asylum service (flyktningetjenesten), volunteer center (frivillighetssentralen) and the school nurse.” (¶ 82.)

The Court went on to conclude that, as a result of his inaction, the stepfather was responsible for both for assault of the children and the gross assault of the daughter that later died, in accordance with § 283 Penal Code. (¶ 92.) The Court especially considered the fact that the father had waited several days before he called for medical help. (¶ 100.)

The members of the Court all agreed on the culpability of the man’s actions, and differed only in the sentencing, with a majority in favor of sentencing him to three years’ imprisonment. (¶ 127.)