Non-consensual sex and sexual harassment become punishable

Sexually transgressive behaviour cannot be tolerated. Minister Grapperhaus (Justice and Security) intends to expand the law to better protect victims of non-consensual sex and sexual harassment. Women and men are confronted with sexually transgressive behaviour on a daily basis, the consequences of which are often profound and far-reaching. By including new criminal penalties for ‘non-consensual sex’ and ‘sexual harassment’ in the law - in addition to the current provisions for rape and sexual assault - victims will soon be able to report such offences more easily than at present and this will also make them feel safer.

This was expressed in a letter sent to the House of Representatives today jointly on behalf of Minister Grapperhaus and Minister Dekker (Legal Protection). The recent #MeToo movement has also exposed the widespread nature of sexually transgressive behaviour and how serious the consequences can be. Today, this kind of behaviour is condemned more strongly in society than before and is considered harmful and punishable, but the necessary protection under criminal law is lacking in certain respects. 

Non-consensual sex

At present, the bar is sometimes set too high for evidence of coercion in cases involving sexual assault and rape. As a result, reports of such offences cannot always be acted upon, while this would be desirable. This refers to cases, for example, where the victim ‘becomes numb’ or ‘freezes’ with fear and is therefore unable to express himself or herself or resist in any way; and moreover, there is no violence involved. Grapperhaus offers a solution by including new sexual offences in the law where not coercion, but non-consensual sex is the criterion.

Sex is a consensual act, that is the norm. Soon you will be liable to punishment if you know or are expected to know based on the facts and circumstances that the sexual acts are being performed against the will of the other person.

“You are responsible for your own actions and you must be aware of the other person’s behaviour and responses. If someone clearly says ‘No’ or shows strong reluctance, you should realise that it is against the person’s will."

says Grapperhaus. 

No means no. Absence of ‘No’ does not mean ‘Yes’. If the other person does not speak out clearly, you must first find out whether he or she actually wants sexual contact. This inability to express oneself occurs when someone ‘becomes numb’ with fear. Another sign is if the person stops participating in the act at any time. A hesitant or changed attitude is a signal.

In future, in cases of doubt, there is an obligation to investigate further and affirm consent. For example, if you ask the other person at that time whether he or she finds the contact pleasurable and wants to continue, it will become clear whether or not that person is consenting. If you don’t take any notice of this, there may be question of criminal behaviour. After all, you are supposed to know that it was against the will of the other person.

Both minor and more serious categories of sexual acts fall under the new penal provisions, for example, unwanted touching of genitals or sexual penetration of the body.

Sexual harassment

Sexual harassment also becomes punishable. With this, Grapperhaus wants to send a clear signal that sexual harassment of others in public is not acceptable. Recently it has become apparent that especially women, but also men, can feel unsafe in certain situations and feel as if they are not free to be themselves because of sexually intimidating behaviour.

For example, as a result of this women may start dressing differently or avoiding certain streets. It is not normal to grope women or men on the street for the purpose of humiliating or offending them by, for example, pinching buttocks or breasts or touching genitals over clothing. The same applies to making public comments or gestures that are of a sexual nature.

Sexually suggestive comments are also often made online, on public forums such as social media or chat sites. Such comments often have a major impact on a person’s sense of security or dignity. Grapperhaus also wants to tackle this issue. One of the undesirable effects of this is that people often start behaving differently: for example, by no longer sharing certain photos via social media or by no longer actively participating on such platforms. This may also lead to psychological problems.

Convention

The new proposals are in line with the Istanbul Convention that came into force for the Netherlands in 2016. This Convention stipulates that sexual acts without mutual consent as well as any form of unwanted verbal, non-verbal or physical sexually suggestive behaviour must be penalised. Grapperhaus further writes that he intends to prepare an impact analysis in the coming months, with a view to the implementation and financial substantiation of the new law. Once the results of this analysis are known, a bill is likely to be submitted for debate at the end of 2019.

Ministry responsible