Is criminalizing sex without consent actually a good idea?
If it were up to the Minister of Justice, Ferdinand Grapperhaus, sex without explicit consent will become a crime. Joost Nan, Associate Professor of Criminal (Procedural) Law at Erasmus School of Law, discussed the positive and negative aspects of such a legislative proposal for new sex crime legislation.
Lowering the bar
Under current law, only intentional and compulsive penetration of the body is a crime. In this new proposal, the legal concept of ‘rape’ is extended. Nan: “All sexual acts against one’s will, will qualify as rape, even acts without penetration.” Currently, sexually assaulting someone without penetration, is not punishable as rape, just as sexual assault.
International developments on the protection of women and the recent MeToo-movement caused a demand for the actualisation of the current sex crime legislation, Nan explains: “There is always an interaction between the law and society. Law shapes society, but more important is that societal standards are implemented into criminal law.” This legislative proposal is a clear example of the actualisation of law.
From a legal perspective, there is quite a large grey area concerning rape. This proposal, however, should make the number of cases in this area a lot smaller. With the current legislation, a suspect can easily claim that he did not know the victim was unwilling to have sex. Additionally, without coercion, someone’s actions do not qualify as rape. Because of this, many cases in practice, are dismissed. But that seems to change, according to Nan: “The tables are starting to turn and victims will get a more protected position. If a suspect could have known that his actions were against the victim’s will, then his actions will become punishable, as long as the suspect has indications of the victim's unwillingness."
Though Nan mainly approves of this development, he does plea for caution and a fair legal position for the suspect: “modifying the benchmark (…) seems logical to me, but we should be wary of taking things too far the other way. Suspects that truly could not have known the sex was without consent, should not be criminalized. That is a risk this proposal holds.”