New law lowers threshold for prosecution of rape
All forms of involuntary sex will now be punishable as rape. Minister Grapperhaus of Justice and Security wants his Sex Crimes Bill to include a new lower limit for prosecution. This would make it additionally possible to charge someone with rape in cases when they should have known that the other person did not want to have sex, but failed to act accordingly. According to the Minister, the threshold currently used in legal practice is sometimes so high as to hinder a proper response to a rape report. This is particularly so in situations where a victim freezes with fear and is therefore unable to speak up or resist. Providing better protection for victims in such situations has been an important motivation for Grapperhaus’ efforts to modernise sex crimes legislation since he took office as Minister.
Minister Grapperhaus sent a letter to the House of Representatives today, stating that the reactions to his preliminary draft of the Sex Crimes Bill show broad social support for making all forms of involuntary sex punishable as rape. 'Sexually transgressive behaviour is all too common and often has devastating and long-lasting effects on people. Sex should always be voluntary, and everyone should be on equal footing. That's the norm. When this is not the case, and the other person's position has not been considered sufficiently, the new legislation will classify the situation as rape', says Grapperhaus.
In May 2020, Minister Grapperhaus submitted a preliminary draft of the Sex Crimes Bill for consultation. This bill lowers the threshold for criminal liability in the case of involuntary sex by creating an offence called 'sex against one's will'. The preliminary draft made it possible for a public debate to take place at an early stage while also involving the House in the new legislation early in the process. On 25 September 2020, Minister Grapperhaus also organised a round table discussion with relevant organisations and experts, including the Public Prosecutor's Office, the judiciary, the police, criminal lawyers, victim's aid lawyers, the Sexual Assault Centre, Amnesty International and a criminal law scholar.
All this has facilitated a valuable and critical exchange of views regarding the modernisation of the legislation. Consequently, the Minister has become convinced that it would be desirable – in a subsequent version of the bill – to opt for a different elaboration and to classify all forms of involuntary sex as rape.
Rape article with different forms of the offence
The legal model that Minister Grapperhaus has in mind is an article on rape that sets out various forms of the offence: negligent and voluntary variants and a variant in which the use of coercive force or violence is considered an aggravating circumstance. Where this model differs from previous legislation is that it posits the negligent variant as the threshold for a charge of rape. This refers to situations in which a person, based on the facts and circumstances, should have been aware that the other party did not want to have sex. If the first individual failed to act accordingly or did not sufficiently consider the other person's position, that individual risks prosecution for negligent rape. They can then be charged with being gravely negligent or careless and for failing to recognise so-called contra-indicators that should have told them the other person did not want to have sex.
A passive or wavering attitude – in which the involuntary nature of the act can be deduced from verbal and non-verbal signals and behaviour – can indicate that the other person did not want to have sex. This lower limit lowers the threshold for prosecution in cases involving involuntary sex and allows victims to report rape in more situations. Supporting evidence – such as traces on the body, camera images or WhatsApp messages – can corroborate a victim's account.
Customisation in legal practice
Minister Grapperhaus believes that a legal model for rape that sets out multiple variants of the offence within the applicable criminal law framework will strike the proper balance between all the interests involved. It will, on the one hand, do justice to what has happened to a victim, while on the other hand, it will also clearly express the degree of culpability on the part of the accused. The more serious the accusation, the higher the maximum sentence that is just. Customisation in prosecution and punishment is vital in real-work practice, such as in situations involving experimental behaviour between young adults.
The Minister called the new model 'promising' and intends to elaborate it further in a new bill. He will do so in consultation with parties from legal practice – such as the judiciary, the Public Prosecution Service and the police – in order to guarantee that soon, with the new legislation in hand, they will truly be able to handle cases more effectively. The goal is to begin consultation in connection with an amended version of the Sex Crimes Bill in December 2020.