New law offers better protection against sexual violence
Minister Grapperhaus of Justice and Security is of the opinion that there must be better protection against rape, online and offline sexual abuse and sexual harassment. To increase the safety of women, men and children, the law is being tightened and modernised. If the sexual offences bill that Grapperhaus is consulting on today becomes law, a person will be punishable for rape if they knew that the other person did not want sex and went ahead anyway. Coercion, violence and threats, while aggravating factors, will no longer be a requirement for conviction. The person initiating sexual contact must be alert to whether the other person wants the same. If this is not clear, he or she should seek clarification.
‘Sex should always be consensual and between equal partners. That is the norm. This should also be enshrined in law. This will send a clear signal to potential perpetrators that sexually transgressive behaviour is unacceptable. Moreover, the police and the Public Prosecution Service will be able to take appropriate action under criminal law and ensure that justice is done for the victims.’
On taking office as minister, Grapperhaus observed that the criminal legislation regarding sexually transgressive behaviour then in force was inadequate. Since then, the #Metoo movement has also brought to light the prevalence of sexually transgressive behaviour. With an earlier preliminary draft of the bill, the minister sought to promote social and political debate on updating the definition of sexual offences. The advice and discussions prompted by the preliminary draft have led to the bill submitted for consultation today. Interested organisations and citizens have three months to advise on the proposed legislation.
It is not only the criminal liability for rape and sexual assault that is being widened and tightened. Grapperhaus is also making sexual harassment in public (on the street, on the Internet and on social media channels, such as Twitter and Facebook) a criminal offence. In addition, the bill updates protection under criminal law against crimes committed online. The massive rise in the use of the Internet, social media and smartphones has resulted in a sharp increase in online interactions of a sexual nature. The starting point is that sexually transgressive behaviour offline and online is equally punishable.
Sexual assault and rape
In his bill, Grapperhaus introduces different types of the sexual assault and rape offences. Both offences are split into a guilt and an intent variant. In contrast to current law, establishing coercion is no longer decisive for proving both offences. The decisive factor for punishability in the intent variant is whether the person who performed sexual acts with the victim knew that the other person did not desire to do so and nevertheless persisted. In the case of intentional assault and intentional rape, the use of coercion, force or threat is made an aggravating circumstance. The guilt variant involves persons who had serious suspicions. It is important that the person who wants sexual contact checks with the other person that he or she is willing to proceed.
A person can infer that there is a lack of will not only from explicit verbal or physical cues, but also from obvious non-verbal signals or explicitly passive behaviour, like a body being frozen in fear. Many victims of sexual assault and rape exhibit a ‘freeze’ response. In practice, the law as it stands can make it difficult to deal with such matters. The new law is expected to make it easier to investigate and prosecute. When hearing victims and accused persons, the police, the Public Prosecution Service and courts will focus on clues that indicate a lack of will and whether sufficient checks were made to ascertain that the other person really wanted to proceed.
Balance of interests
The different types of offence will do justice to what has happened to a victim while also ensuring that the degree of culpability on the part of the accused is properly reflected in the law. This is especially important in cases where, for example, there was experimental behaviour between young adults and people did not yet know each other very well.
In order to ensure proper implementation of the bill, an implementation programme will be set up with the parties involved from legal practice to ensure that they are well prepared for the new legislation and will actually be able to deal with cases better with the new legislation in hand. In addition, following a motion carried in the House of Representatives, the government is already investing €15 million to increase the capacity of vice squads. This will allow for the recruitment and training of a total of about 90 specialist detectives. The first additional detectives will start work this year.