Grapperhaus to modernise legislation governing sexually transgressive conduct

According to Minister of Justice and Security Ferdinand Grapperhaus, the law governing sexually transgressive conduct needs to be brought up to date. Nowadays, there are more categories of sexual offences and offences with sexual overtones than ever before and these offences occur both online and offline. A preliminary draft of a legislative proposal that is being presented for consultation today will expand the range and severity of criminal penalties for sexual offences in order to provide greater protection to victims.

Soon, victims of sexually transgressive conduct will be able to press charges in a wider range of situations and the police and the Public Prosecution Service will be given greater freedom to act. ‘Sexually transgressive conduct is far too prevalent, often causes substantial long-term trauma and can leave people feeling unsafe, offended and/or humiliated. Society demands that sex must be between consenting equals,’ said Minister Grapperhaus. This proposal addresses conduct that society considers increasingly unacceptable in comparison to previous times and that is considered to be damaging and deserving of punishment. For this reason, the minister believes that a clear picture must be established of what is and is not acceptable.

Online and offline

The massive rise in the use of internet, social media and smartphones has resulted in a sharp increase in online interaction of a sexual nature. This development has enabled new forms of location-independent sexual offences. The basic principle of the new law is that online sexual transgressions are equivalent to offline sexual transgressions in the eyes of the law.

Children are particularly vulnerable to online sexual abuse as they are using smartphones at an increasingly younger age and are much more accessible to people with malicious intent. Grapperhaus wants to ensure children are better protected against sexual abuse. One new measure is the explicit criminalisation of chats of a sexual nature. Regular exposure to sexually charged communication with adults is damaging to a child's development and such chats will carry a maximum prison sentence of two years.

Modernisation of legislation in this area must also take into account current public perception of normal sexual behaviour among young people. For this reason, the new law will decriminalise sexting (the sharing of home-made sexual imagery) between young people provided they are equal parties of similar age and the images are exclusively intended for private use.

Sexting is currently considered experimental behaviour that can also be a normal part of sexual development in young people, although it is currently punishable under the criminal provisions governing child pornography. The preliminary draft also includes the provision that normal and equal sexual conduct between young people of 12 to 16 years of age is not a criminal offence.

Non-consensual sex

One important factor is the expansion of criminal law governing non-consensual sex. This legislative proposal will criminalise the performance of sexual acts that - based on the facts and circumstances - the perpetrator ought to have known were against the victim's will. If someone clearly says ‘No’ or shows strong reluctance, you should realise that it is against the person's will. 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. If you fail to do so, then you are risking prosecution.

Minister Grapperhaus is also expanding the scope of the criminal offence of rape. It can occur that male victims are blackmailed into sexual penetration of the perpetrator's body, an act that is currently defined as sexual assault but not rape. This legislative proposal will help provide equal legal protection to both male and female victims of sexual violence. The new criminal offence will include perpetrators who force the victim to penetrate the perpetrator's own body or that of a third party.

Sexual harassment

 Sexual harassment will also become a criminal offence. This type of conduct makes people feel unsafe, for example, a woman may avoid walking down certain streets or feel compelled to dress differently in order to avoid hearing sexual innuendo or suffering sexual harassment or assault while walking down the street. In addition, sexually suggestive comments are 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 wants to tackle these issues.

Tougher penalties

In addition to introducing new criminal offences, the draft proposal will also increase the penalties for a number of existing offences, such as sexual acts with children under the age of 12. The maximum prison sentence for this offence will increase to 15 years, with a maximum of 12 years if the victim is aged between 12 and 16. Other vulnerable and defenceless people will also receive greater protection against sexual abuse, such as people who are intoxicated after using drugs or alcohol. In such cases, themaximum penalty will also be increased to 12 years in prison