Universiteit Leiden

nl en

Consensual sex: easier said than done

Sex without mutual consent is a criminal offence. The proposed new Dutch sexual offences law aims to better protect victims of sexually transgressive behaviour. But the key issue is this: the rules of evidence have not changed, so will victims actually benefit from the new legislation?

Widespread support

For now, Jeroen ten Voorde is keeping his fingers crossed as the new law still has to be approved by the Dutch Senate. But according to the Professor of Criminal Law and Criminal Procedure, something would have to go drastically wrong for the law not to be passed. Ten Voorde says, ‘Pretty much all parties have been involved in this bill: the Public Prosecution Service, the police, lawyers, the Sexual Assault Center, Victim Support Netherlands and NGOs such as Amnesty International. Last summer, the House of Representatives passed the bill almost unanimously – only the Forum for Democracy party voted against it, though we don't know why they did that.’

'What if the offender was also extremely drunk?’

Netherlands is lagging behind

To some extent, the Dutch legislature has no choice. Ten Voorde: ‘The Netherlands made an international agreement to criminalise non-consensual sexual acts ten years ago.’ This means that if somebody knows – or should reasonably know – that the other person does not consent to a sexual act, they are committing a criminal offence by continuing. ‘The UK is 20 years ahead of the Netherlands on this issue, and Sweden and Belgium have also changed their legislation to put the focus on consent.’

Melodie Descoubes through Unsplash

The #MeToo legacy

And yet there’s no denying the impact of #MeToo, the social movement that aims to combat sexually transgressive behaviour. Ten Voorde says, ‘#MeToo essentially provided extra incentive to move things forward. It’s no longer accepted by society that coercion has to be a factor in rape or sexual assault in order for it to be proven.’ Society is therefore demanding changes to the legislation.

Ten Voorde says that this development also aligns with the criminalisation of forms of sexual harassment such as wolf whistling at someone in the street – which he says is ‘popularly known as the ‘wolf-whistling ban’. This ban was only added to the bill later, when the law had already been in the pipeline for some time.

‘The government wants to give victims better protection. But how do you ascertain who the victim is?’

Drunk sex

That’s the theory. In reality, however, it’s not that simple. For example, ‘reasonably knowing’ that the other person didn’t want to have sex can cause tricky dilemmas. Ten Voorde refers to the example of drunk sex; for many students a real-life situation. He discussed the new sexual offences law with a group of students.

‘In the explanatory notes to the bill, many examples are given of criminal behaviour, such as having sex "with someone who is physically incapacitated". According to the law, in that situation you have to assume that the other person doesn’t want to have sex.’ Mutual consent is therefore not possible. However, this assumes that one of the sexual partners ‘has full mental capacity’. Ten Voorde then asks, ‘What if the offender was also extremely drunk?’

The question remains as to how judges will arrive at judgments in this kind of situation. Himself a part-time judge, Ten Voorde says: ‘The social debate actually only begins once the law has been introduced and judges have to give judgments in individual cases. The issue of the lower limit is critical: what’s permitted and what’s not?’

Difficult to prove

It is hoped that the new law will improve the situation for victims, but Ten Voorde has a word of caution: ‘It’s still very difficult to provide evidence.’ Merely believing the victim's story is not enough proof.

In order to bring a successful conviction, it needs to be established beyond reasonable doubt that the victim did not consent to a specific sexual act. Ten Voorde says, ‘Then, as now, it’s a matter of establishing perceptions retrospectively: what was one person thinking, and what was the other person thinking?’ The fact is that transgressive situations usually happen in private and most cases do not make it to court until many years after the event in question. That makes it even more difficult to establish exactly what happened. ‘The defendants’ litigation strategy also remains relevant,’ says Ten Voorde

Who's the victim?

It often takes years before sexual offences cases come before the courts. Until a judgment is given, the case weighs heavily on both the victim and the accused. As a result, it’s not always obvious who the victim is. Ten Voorde continues, ‘Through the new law, the government wants to give victims better protection – and rightly so. But how do you ascertain who the victim is?’

In Ten Voorde’s view, the police are afraid of false allegations being made: ‘Arguably, people will be more likely to go to the police once the threshold for criminal liability has been lowered, as coercion no longer has to be a factor in sexually transgressive behaviour.’

Currently, victims who report incidents to the police are given a reflection period – partly to prevent false allegations. Ten Voorde: ‘The question is whether a reflection period still aligns with the purpose of the new law – and, if it doesn’t and it’s scrapped, whether that will cause problems.’

Text: Helena Lysaght

Photo: Drew Hays through Unsplash

This website uses cookies.  More information.