From force to consent: a new definition of rape in the Netherlands
On International Women’s Day the Dutch Minister of Justice introduced a new Bill on sex crimes. Rape and sexual assault will no longer depend on force but on the absence of consent. Why the reform and what will it yield?
Reforming sex crimes
Currently, the Dutch criminal law defines rape as the ‘actions comprising or including the sexual penetration of the body’ that have taken place by force (Art. 242). Force is specified as ‘coercion through violence, the threat of violence or through another act or the threat of another act’. The law, in part, is the product of feminist legal engagement; pre-1991 rape was restricted to sexual intercourse between the perpetrator, a man, and a woman out of wedlock, and the requisite coercion was limited to ‘violence or the threat of violence’. Yet, while the definition of coercion was broadened, on the basis of the current law evidence of some form of resistance by the victim remains a prerequisite for a rape conviction – something the feminist lawyers who had campaigned for the for the definition of rape to be expanded also regretted (see Zeegers 2002).
The current Bill would mean that this is all changed. In the Bill, rape and sexual assault do not depend on whether the perpetrator breaks the will of the victim. Instead, the threshold for sexual assault and rape is the absence of will: when the other person shows explicit verbal or physical restraint in behaviour, markedly passive behaviour, or when, obvious (non)verbal signs, indicate reluctance on her or his part (Memorandum). The Bill distinguishes between sexual assault and rape that is intentional (Arts. 241 and 243) – with a higher maximum penalty in case of force, violence or threat – and sexual assault and rape where intent cannot be established, but where the perpetrator had serious reason to suspect that the other person did not consent (Arts. 240 and 242).
#MeToo: Social change and the Istanbul Convention
Why is the law being reformed now? The Dutch Minister of Justice and Security, Ferdinand Grapperhaus, states that the reforms are a response to changing social attitudes towards sex and sexual violence. And it is clear that these societal changes can in part be attributed to recent activism, including that of the women and men behind the #MeToo movement. According to Minister Grapperhaus, #MeToo has revealed both how widespread sexual violence is and how great an impact it has on victims.
Yet if one reads the explanatory Memorandum carefully there is no question that the proposed reforms also aim to bring Dutch law in line with the requirements of the ‘Council of Europe Convention on preventing and combating violence against women and domestic violence’ (Istanbul Convention) which entered into force in the Netherlands already in March 2016 (see also Lindenberg 2020).
Amnesty International Netherlands has played a key role. Previously, in May 2020, Minister Grapperhaus, introduced a Bill criminalising sex without consent as a separate crime. Yet Amnesty put up serious opposition to this proposed reform. In the opinion of Amnesty, criminalising sex without consent as a separate crime, and with a significantly lower maximum prison sentence, fails to do justice to the victims of such crimes. Amnesty also argued that doing so would violate the Istanbul Convention, an opinion that is not completely uncontested (see Lindenberg). In November 2020 it became clear that the majority of Parliament – including Grapperhaus’ own party – followed Amnesty’s frame of thought, and the Bill was sent back to the drawing table.
Different law and its limits
In my opinion, the Bill presented by the Minister last week should be welcomed as an improvement to the current law on rape and sexual assault. The focus on consent allows for definitions of rape and sexual assault to be more sensitive to lived experience; definitions that move away from stereotypes about these forms of sexual violence. Contrary to what many people still think, rape and sexual assault are not usually committed by a stranger catching a woman by surprise and violently forcing her to undergo sexual acts she tries to resist (see also Vanderveen 2006, Christie 1986). In fact, perpetrators are often known to the victim, and victims – female victims in particular - often respond to sexual assault and rape by doing nothing at all; they freeze.
The current Bill constitutes an improvement because the focus on consent takes the sexual autonomy of women and men seriously. It also prevents the freezing of a rape victim from standing in the way of a conviction of the perpetrator. Thus, the Bill should be understood as an example of what feminist lawyers have called different law; law that takes the lived experiences of women into account, and that moves away from stereotypes.
However, if adopted, it is as yet unsure precisely what the reform would yield in the courts. For the 1991 reform of rape law, Zeegers showed how the exigencies of legal reasoning and proof put a limit on how coercion was understood in court. How judges interpret new definitions of rape and sexual assault, and what is needed to prove intent and culpable negligence in this context, is an open question. Moreover, the problem of proof in cases of rape and sexual assault will not likely disappear.
Finally, we have to look at whether or not cases make it to court at all. Investico, a platform for investigative journalism, recently showed that while an increasing number of rapes are reported to the police (an increase of 60% over the past 7 years) the number of official rape reports filed did now grow accordingly. Victims of rape are increasingly willing to go to the police, but this often does not lead to an official report, often because victims are discouraged from doing so. Many cases never find their way to a courtroom. What the new Bill will yield ultimately depends not only on how the new laws are applied in court, but also on how victims, police officers, and prosecutors use the law
Currently, the participants of the honours course Gender and Law are working on a project around the new Bill on rape and sexual assault. In small groups, they will delve further into a number of the issues and questions raised in this blog. In early April, the results of this project will appear on the blog genderenrecht.weblog.leidenuniv.nl.