Norwegian courts discriminate: Ethnicity and location matter in sentencing of rape cases

A systematic survey of 176 rape cases from 2011 and 2012 has produced the following results:

• If you commit a rape within private space, i.e. indoors, the sentence will in average be thirty per cent lower than if you rape someone within public space – a park, on the street, in a taxi etc.
• If you’re a white ethnic Norwegian, the sentence will in average be twenty per cent lower than for assailants with minority background.
• If you rape someone at a party the sentence will in average be twenty per cent lower than if the rape is committed outside of a festive context.
• If you rape someone you know or someone with whom you have a relation before the assault, the sentence will in average be eighteen per cent lower than if you rape someone with whom you have no previous relation.

Were surprised by their own research findings

After narrowing down the research design and taking into consideration every legal change and legal provision, Anne Bitsch, PhD candidate at Centre for Gender Research in Oslo did not expect to find anything of statistical significance.

“It is no understatement to say that my jaw dropped when the first estimates started coming in and the scope of the analysis results occurred to me. It is frightening and shocking.”

In collaboration with economist Marit Elisabeth Klemetsen, Bitsch has published the first results of her PhD research in the article The legal grading of sexual citizenship: sentencing practices in Norwegian rape cases, in the journal Gender, Place & Culture.

“For someone without legal education, our legal system is partly an inaccessible culture and a difficult sphere to acquaint oneself with. During my fieldwork I have taken courses in criminal law at Columbia University, and I have discussed my work and the research design with many competent legal experts who have given me valuable feedback,” says Bitsch. She has investigated the legal system’s handling of rape cases over the past six years.

The figures speak for themselves

The conclusion drawn by Bitsch and Klemetsen’s research is that the Norwegian courts of justice’ sentence practices in rape cases are based on an implicit normative hierarchy: Rape committed by strangers in public spaces rage on top of the hierarchy. Rapes committed indoors, often at a party, by someone acquainted with the victim, are considered less serious and are placed at the bottom of the hierarchy.  

The claim that this is the reality of things has been put forward by the media for a long time. International research has found a similar pattern in other countries such as the US and the UK. With their new research, Bitsch and Klemetsen can present statistics showing that this type of unlawful discrimination also takes place in Norway.

Bitsch and Klemetsen maintain that victims of rape in Norway do not have equal access to legal protection.

“Several victims have come forward and talked about their experiences of witnessing in the court and not being treated the way they expected. There was a need for quantitative research that might help us understand all the individual cases that have circulated in the media over the past years,” says Bitsch.

“Despite the emergence of several individual cases, we haven’t had the necessary basis for making generalisations until now. Our study is a contribution in this direction, but it doesn’t uncover what happens in the District Courts or at the police station.”

Institutional sexism and racism

Bitsch and Klemetsen maintain that victims of rape in Norway do not have equal access to legal protection. If they did, issues such as where the rape took place, who was raped and by whom would not have any effect on the sentence.

“We used the Anti-Discrimination Act and the Gender Equality Act as a point of departure. These laws state that discrimination is unequal treatment without legal basis, which affects a woman or someone of ethnic minority. All things considered, unlawful discrimination occurs in Norwegian courtrooms.”

“Judges are supposed to exercise discretion. But discretion that is consciously or unconsciously based on stereotypes and results in systematic discrimination may be interpreted both as a symptom of and grounds for institutional sexism and racism.”

“Girls and women engaging in a lifestyle where sexuality is used for recreation rather than procreation, seem to be defined as less-deserving victims,” the researchers write in their article. 

Furthermore, Norwegian courts of justice’ sentencing practices in rape cases seem to “reflect the notion that women should exercise a healthy, non-promiscuous sexuality in the home, preferably with a spouse or stable partner.”

“The justification for writing this is how several of the statements formulated in the jugdments,” says Bitsch.

“At times we’ve seen a negative view on youth, partying, and liberal sexual culture.”

Dangerous to party?  

Attending a party seems to be considered risky. According to sentences examined by the researchers, men may happen to rape women by accident at parties. Or because they are immature.

“Even in cases where the rapes involve considerable use of force or assaults that seem to be planned, questions are raised as to whether it should be taken into consideration that the man had a legitimate expectation of sex or not,” says Bitsch.

“Girls and women engaging in a lifestyle where sexuality is used for recreation rather than procreation, seem to be defined as less-deserving victims.”

Forty-three per cent of the rapes in the research material were related to parties.

“An alternative interpretative frame,”  Bitsch writes, “which is almost invisible in the judgments, is that such rapes are in fact serious assaults on a person’s sexual autonomy and closely related to a culture of white male privilege and sexual objectification of girls and women.”

“Party rape is a new term that has established itself within research and media. What is it with the party rapes? Are the sentences lower when you rape someone at a party because it is more difficult to prove?”

“That's a good question. We’re curious about that too. We can dismiss with certainty that it has anything to do with the state of the evidence, since we have only studied cases that have ended in conviction. If the evidence is too weak the court has to acquit, not just reduce the sentence,” says Bitsch.

“As a society, we’re still struggling to recognise women’s right to authority over her own body, also when they get drunk and party. It may be the case that getting drunk and flirting involves a certain risk, but the court should always recognise that partying is legal. The victims are not the ones on trial; it is the person who has had sex with someone else against his or her will.”

“But is it possible that boys in these situations actually don’t understand that they are committing a rape? And that this is why we see statements about accidents and immature boys in the sentences?

“Yes, this may be the case. In some sentences, the court rightfully convicts someone for gross negligent rape, which has a lower sentence. But there are also examples in which people are convicted for intentional rape where one still gets the impression that the court doesn’t find it particularly reprehensible or strange that a man had sex with an unconscious woman. In several cases the point seems to be that the woman has consented in the absence of contrary evidence, and that it is her responsibility to guard her own sexuality.”

Biggest sentence discount for indoor rape

The researchers have found that the biggest sentence discount is given in cases where the rape takes place in a private setting or indoors. This gave thirty per cent lower sentence compared to rape committed in public spaces such as a park, a trail, a street, a taxi, a construction site, etc.

“The state has a major potential for improvement when it comes to recognising sexual violence committed in the private sphere,” says Bitsch.

She is critical to the fact that the result that has been given most attention in the media is that white ethnic Norwegian men get twenty per cent sentence discount compared to men with minority background. The discrimination of women who are raped within the private sphere is thirty per cent, which is both larger and statistically more significant. As many as seventy-seven per cent of the rapes in the material happened within the private sphere. But this finding did not reach the news headlines.

“Questions are raised as to whether it should be taken into consideration that the man had a legitimate expectation of sex or not.”

“We see that violence within the private sphere is considered less serious,” says Bitsch.

“The legal system is a remitter of norms; the decisions made in the courts affect people’s attitudes to gender, power, sexuality, and justice. To systematically defuse the sexual violence that is most widespread and that primarily affects women has an enormous symbolic effect.” 

Difficult to measure

But ethnicity has received most attention. Just over half of the assailants, fifty-three per cent, are categorised as men with minority background.

On average, ethnic Norwegian men get forty-three per cent lower sentences than men with minority background. Even when the researchers clear all relevant circumstances, these white, Norwegian majority men still get twenty per cent lower sentences than those with ethnic minority background.

“This variable is the most difficult one to measure, but we found a method that we can vouch for,” says Bitsch.

“We’ve examined how ethnicity concurs with perceptions of normality.”

For instance, a second generation Pakistani with Norwegian citizenship was categorised as ethnic minority. A white Swede was however categorised as ethnic majority, since the court doesn’t characterise the Swedish rapist’s ethnicity as different from the majority. 

The researchers have used the following checklist to tick off for ethnic minority:

• The defendant’s nationality or regional affiliation is explicitly stated in the sentence
• The sentence mentions that the defendant is an immigrant, that he doesn’t understand Norwegian values, or similar formulations  
• If ethnicity, the defendant’s name, or cultural values are not mentioned, the researchers have either tracked down the District Court judgments, contacted the defence attorney, or refrained from registering ethnicity, in which cases the sentence is not included in the estimation.

“We’ve been very conscientious when it comes to the ethnicity variable. I’ve read several of the sentences three times,” says Bitsch.

Ethnicity, not adjoining factors

One objection that appeared in the media was that the rapes committed by ethnic minorities were more brutal than those committed by ethnic Norwegians, which also warrant higher sentences.

Marit Elisabeth Klemetsen has a PhD in economics. She and human geographer Anne Bitsch met a few years back at a PhD course on research ethics and methodology at the Univeristy of Oslo.

“We control for the relevant factors,” Klemetsen argues, and explains:

“If rapes committed by ethnic minorities are more violent than other rapes, our model has taken this into consideration. This is possible as there are examples of brutal rapes committed by both ethnic minorities and by ethnic Norwegians. But our findings show that rapes committed by ethnic minorities are on average judged stricter even when the relevant circumstances are the same.”  

“We’ve found that ethnicity is a decisive factor in itself, not only the graveness of the rape committed – which of course gives legitimate ground for differential treatment. This naturally also applies to the other categories we’ve been investigating,” Klemetsen emphasises.

“No statistical models are perfect, and quantitative studies often benefit from being followed up by careful qualitative analyses,” Bitsch adds.

She wishes to contribute with such qualitative analyses in forthcoming publications based on her doctoral research, including observations from fifteen court trials and ten in-depth interviews with defence attorneys.

Dismiss criticism

In an article in the Norwegian daily newspaper VG, two legal judges dismiss the research results.

According to Rune Bård Hansen, judge at Agder Courts of Appeal, and District Court judge in Oslo Ina Strømstad, the conclusions are misleading. They claim that the differences in the level of penalties can be explained by aggravating or mitigating circumstances as well as other potential factors.

“I am puzzled by these statements,” says Bitsch.

“Our study is highly cogent and takes into account that there may be good reasons for extended or reduced penalties. Our study is not about differential treatment, it is about illegitimate differential treatment. Either they haven’t read the article thoroughly or they don’t understand the possibilities of statistical analyses for taking into consideration the relevant circumstances and the opportunity these methods provide for measuring the effect of each individual factor.”

“We’re positive to criticism,” Klemetsen adds.

“But this particular criticism is misjudged. Among other things, the judges maintain that mitigating circumstances give reduced sentences. This is true, and this is taken into consideration in our model. We’ve found that mitigating circumstances give thirty per cent sentence discount. In addition to this – as well as increased and reduced sentences following a number of other legal provisions – we’ve found additional average reduction when the defendant is ethnic Norwegian.”

“We’ve found additional average reduction when the defendant is ethnic Norwegian.”

Klemetsen and Bitsch specify that the study doesn’t say anything about why discrimination takes place. It just shows the occurrence of discrimination.

“It doesn’t necessarily have anything to do with resentment among the judges,” says Klemetsen.

“Differential treatment, stereotyping, and discrimination often occur unconsciously. Everyone stereotype other people on a daily basis. We’re hoping that increased awareness of this phenomenon may contribute to less illegitimate differential treatment. Thus a debate on this is healthy.”

Men with minority background overrepresented  

“More than half of the rapists in the material have minority background. This is a strong overrepresentation in proportion to the number of people with minority background in Norway. Why is this the case?”

“There may be many reasons for this. The most obvious one is that the criminal statistics actually reflect the total picture, that people with minority background commit more crimes than the majority. But it is not that simple,” says Bitsch.

“The short answer is that people with minority background commit more rapes than others, but we can’t say anything about this for sure. The long answer has to do with the fact that the legal system has a filter mechanism, both in legal and sociological terms. The cases and the people who come into contact with the legal system are highly selected.”

The stereotypes resulting in the fact that being ethnic Norwegian gives reduced sentences and that being raped by an acquaintance at a party is considered less serious than being raped on the street may also affect who gets reported to the police, investigated, and accused.

“If you don’t buy into that explanation, an alternative answer may be that people with minority background are more criminal than those belonging to the majority, and that’s it. This is both right and wrong. In pure figures, people with minority background are overrepresented in the general crime statistics in proportion to their population percentage. According to Statistics Norway (SSB), the significance of minority background goes down when you take class, social marginalisation (drugs, low or no education), age, and gender into consideration. To put it briefly, young men in the cities commit most crimes.”

A systematic and comprehensive piece of work

Kari Stefansen, researcher at Oslo and Akershus University College of Applied Sciences, has read Bitsch and Klemetsen’s article. Stefansen has long experience with research on youth, sexual offences, and rape herself. She is puzzled by the judges’ dismissal of the findings in the VG news article.

“There are many opinions about what is going on in the legal system, and that benefits no one. Bitsch and Klemetsen’s article is based on extensive work where the researchers have proceeded systematically,” says Stefansen.

“It’s a good thing that research is debated, and there are probably several interpretations. Categorically dismissing the results is unfortunate. It gives the impression that the judges are not interested in the research.”

“Differential treatment, stereotyping, and discrimination often occur unconsciously.”

Stefansen is hoping that Bitsch and Klemetsen’s study will make the various actors within the legal system more aware of extrajudicial circumstances that may affect their assessments.

“At the same time, more research on this is needed before we should consider possible measures.”

See also: Unused medical evidence in sexual assault cases

Parts of the system works

Bitsch and Klemetsen emphasise that the study also has yielded some positive results. Overall, the judges seem to weight the legal factors in line with the legislator’s intentions, as the sentence is reduced where it is supposed to be reduced and increased where is should be increased.

For instance, mitigating circumstances give thirty per cent reduced sentences on average, whereas aggravating circumstances give thirty-five per cent higher sentences.

Gross negligence gives on average seventy-one per cent reduction, unsuccessful attempts give forty-one per cent reduction, whereas intercourse or planned rape gives twenty-nine per cent increase.

In line with the legislative revision in 2010, the average sentencing levels have increased. The legal system recognises to a larger extent the graveness of the integrity offence when being exposed to sexual assaults when asleep or unconscious. The rapes committed after these changes have been given forty-seven per cent higher penalties compared to rapes committed before these changes.

Translated by Cathinka Dahl Hambro