Modernizing sexual offense legislation: start with consent

A wave of solidarity resembling the #MeToo movement has swept across Québec after a series of denunciations of sexual misconduct voiced on social media have blatantly exposed multiple prominent, public figures. The fact that victims are now turning to social media, rather than trusting the criminal justice system, is quite extraordinary. It says a lot about the level of confidence that victims hold towards judicial institutions in such cases.

This phenomenon is backed by alarming statistics in Canada: it is estimated that only 5% of sexual assaults are reported to Law enforcement.

Witnessing these events unfold in Québec made me wonder if the Netherlands was facing similar societal issues. A quick browse of local news led me to conclude that, of course, it is. In the Netherlands, an estimated 70% of sexual offenses are not notified to the police. Out of the notified cases, 37% of the victims will make an official declaration, and 58% of those official declarations will be dismissed for lack of evidence, namely.

To my utmost surprise, lack of consent from a victim is not punishable under current Dutch law. It is not considered a rape if there is no evidence of coercion or violence. Thus, as it currently stands, Dutch Law and legal practice surrounding rape is in contravention of international human rights standards.

Interestingly, at the beginning of May 2020, Dutch Minister of Justice and Security Grapperhaus introduced a draft bill to modernize the criminalization of sexual crimes in the Criminal Code, by adding new criminal offenses, reformulating and tightening existing offenses and increasing penalties. Among other changes, the new bill considers ‘sex against free will’ as a criminal offense, but it still does not recognize it as rape.

The need for Grapperhaus to introduce a legislation that better protects victims of sexual violence and that modernizes sexual offenses has been called upon by Amnesty International in the context of a campaign called ‘Let’s talk about yes’ launched in February 2020, which raises awareness about sexual consent and about the “outdated laws, widespread myths, gender stereotypes and worrying attitudes towards consent [which] perpetuate rape”.

By introducing the draft bill in May, Minister Grapperhaus acknowledges that the “current criminal legislation regarding sexually transgressive behavior falls short on a number of points” and that “the boundaries of what we consider acceptable behavior in our society have shifted.” Having always considered the Netherlands as a model of modern and progressive society, this last statement left me uncomfortable and in slight disbelief. How is it possible that the ‘boundaries’ of what society considers acceptable have still not shifted enough to consider that the lack of consent is, in fact, the essence of rape?

Loud criticisms about the bill are already being voiced, pointing out that, whilst being a step in the right direction, it is not doing nearly enough to protect victims. The bill would especially be off target when creating a distinction between ‘sex against free will’ and rape, and by considering the former as a lesser offence, subject to a lower penalty.

I fully side with Amnesty International, who argues that the bill, in its current wording, does not adequately protect victims. As long as such stereotypes and misconstructions about sexual consent are perpetuated and endorsed by the law, I believe that victims will continue to mistrust judicial institutions and turn to other mediums to get a sense of justice.

Public consultations on the draft bill are ongoing and will end on August 16, 2020.