New legislation on online sexual crimes in the Netherlands: Decisive or doomed to become a dead letter?
According to the Minister of Justice and Safety Ferd Grapperhaus (CDA), the Dutch sex laws desperately need an update. In for a penny, in for a pound: new legislation has been proposed, evaluated and revised.
However, will his proposal actually contribute to fruitful action against online sexual crimes, or will it on that score end up as merely symbolic legislation?
Once upon a time, we had novels like '1984' by George Orwell or 'Brave New World' by Aldous Huxley about strange societies and horrendous social habits. They did not exactly predict the internet and social media, but a situation in which more than 750,000 people in a small country like the Netherlands are victim of sexual harassment on the internet would actually not have looked out of place in a dystopian social science fiction novel. Sadly, the Dutch Central Bureau of Statistics calculated that literally this many people above 16 suffered from sexual crimes on the internet in 2020. Among them were many young women and members of the LGBTI community. They were hurt, threatened, scandalised, damaged and injured by cruel actions with a sexual character by other people using the internet. This is a major problem of our time. What to do about it?
Time for action: New legislation on sexual crimes on the internet
In May 2020, the Dutch government proposed new legislation on sexual crimes. The proposal emphasises that in our society, sexual crimes – whether they are physical or online - are unacceptable and should be punished severely. Victims must be able to press charges easily and the police and the public prosecutor need effective powers to take action against offenders. The government opened a consultation and many expert-organisations responded. The proposal is widely considered an important step forward in the fight against online sexual crimes like sexting, shame sexting, sextortion and revenge pornography. But the most important question is: will this really help solve the problem? Some interesting observations have been made giving rise to doubts about the success of the proposed new rules in practice.
Will the police and the prosecution office be able to execute the new rules properly?
The first observation is that, under present legislation - which are the laws regarding sexual assault as laid down in the current Dutch Criminal Code - it is already hard for victims to receive cooperation when they go to the police. And even when their reports finally do reach the public prosecution office, the prosecutor often decides not to prosecute. Victims are often told this is because of a lack of expertise, focus, time, priority and so on. So currently, the judicial system has many troubles responding effectively to reports on sexual crimes.
Because of this, many expert-organisations have serious doubts whether the police and the public prosecutor will be able to handle the thousands and thousands of new reports on sexual crimes on the internet under the new legislation. As a result, victims could easily find themselves in a long, long waiting line when they want to report a crime. Even though it has recently come to light that the government is planning to invest twenty million euros yearly in order to get its new rules well-executed, only time will tell whether this amount of money will be sufficient to solve the prevailing capacity problems.
Will deadly legal discussions kill the new rules?
The second observation is that organisations of lawyers and judges in the Netherlands have reacted critically to the proposal for new legislation. They cannot see why the new legislation is necessary in the first place - contrary to victim-oriented organisations who claim that new rules are needed to protect victims. Lawyers and judges seem to be afraid that the new rules will produce a tsunami of accusations and that many will be wrongfully accused. They also have doubts whether criminal law is the right instrument to tackle the problem of sexual crimes on the internet and feel that the proposed penalisation of specific internet conduct might be contrary to European law. Above all, their reports indicate that lots of evidence-related issues might arise in court given the contextual character of these crimes, leading to poorly enforceable legislation.
Taking into account all these concerns regarding the legislation, there seems to be a serious risk of the new rules either not being carried out as planned or simply put aside by the judge, resulting in dismissal from prosecution or acquittal of the offenders. If so, this could easily prevent the new rules from being effective in practice.
It is clear that the government will have to discuss this risk with organisations of lawyers, judges and victims and find a successful solution.
So what needs to be done?
The Dutch government will probably send the proposal for new legislation on online sexual crimes to Parliament in 2022; the entry into force is expected in 2024. Parliament and the responsible Minister will have a thorough discussion about the proposal and about the necessary conditions to make it work in practice. It is essential that Parliament and the Minister recognise that effective legislation is a necessary part of the solution, but together with new rules there must always be a systematic and purposeful use of education, prevention projects, communication, research, et cetera. And first and foremost, a good implementation and enforcement of the new rules must be ensured. The Dutch Parliament should try to convince the responsible Minister to take additional action on this. As always, money will play an important role: to finance projects on education, capacity-building within the police, and so on. A focused dialogue with lawyers and judges seems crucial as well. If the Minister acts properly, the new legislation in the Netherlands might actually work. But if the Minister fails to do so, the new rules may just prove to be a dead letter.