Know your rights – the role of counsel for the aggrieved party

Who is entitled to counsel for the aggrieved party?

Anyone who has been the victim of rape can claim free legal assistance, regardless of income or assets. In accordance to straffeprosessloven § 107 a) (the Criminal Procedures Act), the aggrieved party is entitled to a lawyer in rape cases. If the incident is reported to the police, the lawyer will seek the right to be nominated counsel for the aggrieved party.

You are also entitled to free legal assistance in cases of sexual intercourse with children under 16, incest, human trade, circumcisions, forced marriage, domestic violence (exerted violence is not required, the term also includes psychological violence for instance forced retention or threats) and in cases where the suspect has violated a restraining order or you need to request a denial of visit to your home.
These are just some of the cases where the aggrieved party is entitled to counsel.

Are you entitled to counsel for the aggrieved party if you don’t report the assault?

Whether the assault is reported or not, the aggrieved party is entitled to three hours of free legal advice and guidance in the case. This is particular important for those who are uncertain whether to report the incident or not.

What is the role of counsel for the aggrieved party?

Counsel for the aggrieved party will not only provide legal assistance, but also to give the aggrieved party other assistance and support as is natural and reasonable given the case. You must be able to expect a counsel for the aggrieved party to spend more time with the client than an “ordinary” lawyer. Lawyers working (a lot) in the capacity of counsel for the aggrieved party should be interested in people and have a certain degree of empathy.

Counsel for the aggrieved party should have the best interests of the aggrieved party in mind at all stages of the case.

When the assault is reported, the aggrieved party is entitled to be accompanied by her counsel throughout the entire interview. To report the assault you have to make an oral statement to the police. The oral statement is either recorded (by tape or video) or put in the form of a written transcript. When recorded, the interrogation might take a couple of hours. A summary of the statement will subsequently be written down. After a few days (or weeks) the victim will be summoned by an investigator to go through the statement and sign it.

The traditional way of making a statement - no longer to be used in serious vice cases - is to write down the oral statement during the questioning. Once it is written down, the statement can be read though by the victim. You then have the opportunity to make corrections to it. The interrogation might take 4-6 hours or more if it is not recorded. The lawyer will get in touch with the police ahead of the interview and book an appointment. You can also meet at the police station without an appointment, but then there is a risk of a queue. In Oslo you make an appointment by contacting the Criminal Investigation Department at the Police station at Grønland(Sentralvakta).

During the investigation

During the investigation, counsel for the aggrieved party is entitled to receive copies of all documents related to the case. The victim will have the opportunity to read through these documents at her/his counsels premises. Counsel for the aggrieved party will be able to contribute to the investigation, e.g. by suggesting witness interviews or photographic identity parade if this has not already taken place. Counsel for the aggrieved party may issue reminders to the police if the investigation is drawn out.

Once the investigation is complete

When the case has been fully investigated, the investigating officer will submit the case to the responsible prosecuting lawyer. The case can have three different outcomes. The police lawyer will send a report to the public prosecutor stating either that the prosecution should go ahead or that the case should be dropped. The third option is returning the case to the investigator, ordering further investigation (e.g. witness statements).

There may be various reasons for dropping the case. If the case is dropped, there may be various reasons for this. The most common reason for a case to be dropped is “due to insufficient evidence to proceed”. This does not mean that the prosecuting authority does not believe the assault took place, but that the evidence is not good enough to secure a conviction in court.

If the case is dropped, you then have three weeks in which to appeal the decision with the public prosecutor. Counsel for the aggrieved party will be able to provide guidance on whether you should appeal regarding the case, and, if so, the lawyer will be able to draft such an appeal.

You can also bring the case to a private prosecution. Your lawyer can advice you on this. It is, however, very rare to bring private prosecutions in rape cases, and as far as I know such prosecutions have never been successful.

Another option would be to bring a civil suit, i.e. to bring a claim for compensatory damages against the suspect. The standard of proof is not as stringent in such cases as in criminal trials. The attacker cannot receive a sentence in such cases, but he/she may be ordered to pay damages.

If a prosecution is brought

If a prosecution is brought, the lawyer will be able to bring a claim for compensatory damages against the defendant on behalf of the aggrieved party in connection with the criminal trial. These are known as civil legal claims, cf. Section 3 of the Criminal Procedure Act. The counsel of the aggrieved party is entitled to be present during the trial to safeguard the interests of the victim.

For instance, the counsel may ask the court’s administrator (the judge) for the defendant to leave the court when the aggrieved party is to testify.

While the prosecutor argues the case on behalf of the prosecuting authority, counsel for the aggrieved party ensures that the interests of the aggrieved party are taken into account to a sufficient extent. Counsel is entitled to question the aggrieved party and witnesses regarding the consequences of the rape, which are of significance to any claim for damages. Counsel for the aggrieved party can also call witnesses in order to clarify these questions.
The lawyer for the aggrieved party is entitled to object to questions which are irrelevant to the case or which are asked in an inappropriate fashion. Also, the lawyer has the right to comment on procedural issues relating to the aggrieved party.

Council for the aggrieved party cannot argue the question of guilt, but is entitled to put forward a claim for compensatory damages on behalf of the aggrieved party.

It is possible to claim compensatory damages for damaged clothing, charges paid for visits to doctors or psychologists, travel expenses, any damages for pain and suffering, lost earnings, etc.
It is also possible to claim aggravated damages. This is compensation for non-pecuniary harm. Aggravated damages should be a kind of “bandage on the wound” for the aggrieved party due to the mental after-effects of the rape. The Supreme Court has stated that the standard amount for aggravated damages in rape cases should be NOK 100,000, and that this figure should be departed from only in extreme cases.

Regardless of whether the case is dropped or makes it to court, counsel for the aggrieved party will be able to help the victim by increasing criminal injuries compensation from the State. If the suspect is of unsound mind or if the perpetrator turns out to be unknown, it is possible to claim aggravated damages even if the suspect is not worth pursuing. But the case must be reported from the outset in order to be able to claim compensatory and aggravated damages.

How do I get in touch with counsel for the aggrieved party?

All lawyers can act as counsel for the aggrieved party, but using a lawyer who specialises in such cases can be a clear advantage. DIXI has made a list of recommended lawyers.