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No Has to Mean No: Rape Laws in the Netherlands

by Doenja van der Veen


* Trigger warning: (non-explicit) discussion of rape and physical force *


If you or anyone you know are familiar with Amnesty International NL you have probably seen the “Ik zeg ja” or “Let’s talk about yes” campaign floating around your social media. Since February last year Amnesty NL has been pushing for change in the laws regarding rape in the Netherlands, building off claims by various feminist groups. Recently this has taken the shape of the “ja-muur” where people can post a photo online to chime in with the calls for change. But what exactly is the law? And why does it have to change?



Campaign image Amnesty International NL


In the Netherlands, currently, there exists the “zedenwetgeving” which has come to include most sexual crime. This in itself is already an outdated term: zeden roughly refers to “civilized” or otherwise acceptable behaviour conducted in society . Rape and other crimes of a sexual nature are listed under this in the Dutch law. How rape or “verkrachting” in Dutch, is currently defined under this legislation is even more outdated. Currently in order for the court to rule that a rape has occurred the victim has to prove that some sort of “force” (dwang) has occurred. This refers to signs of physical resistance by the victim in regards to the event.


This definition is outdated for several reasons. Firstly, many victims of rape experience something referred to commonly as “freezing” or “tonische immobiliteit” in which they are immobilized out of fear and thus cannot “resist” in the way that the law now requires. Additionally, defining rape as including force disproportionally puts the onus on the victim to procure proof and makes it much harder for victims to come forward if such force did not occur. It also leaves cases outside of the law that are not so clear cut.


Feminist scholars, and Amnesty, argue instead that the definition of rape should be based on a lack of consent. This is already the model used in other countries such as Sweden. In their previous legislation you also had to prove violence or a vulnerable condition such as the consumption of alcohol. However in the new law, lack of consent already constitutes a crime of rape. Passivity also does not constitute consent under this model: “If a person wants to engage in sexual activities with someone who remains inactive or gives ambiguous signals, he or she will therefore have to find out if the other person is willing”. Sweden is not alone in this, this type of legislation has previously been enacted across Europe, including Germany and the UK. Critics argued that this would make the law too broad and difficult to enforce, but in Sweden it has been effective and has not disproportionally raised conviction rates. Additionally there are methods the courts can employ to surmise what has taken place that do not rely only on evidence of physical violence. Aside from the victim themselves testifying, this includes experts in psychology and sexual assault, such as those at the Dutch Centre for Sexual Violence (Centrum Seksueel Geweld).


The current minister of Justice and Security in the Netherlands, Grapperhaus, already expressed in 2017 that he wanted to modernize this legislation. In 2019 he put forward the legislative proposal for the “Modernisering (van de) zedenwetgeving” (Modernisation of the legislation). This included a name-change to sexual misconduct (sexuele misdrijven), harsher punishment and more justiciable offenses. However, rather than changing the actual requirements that constitute rape, Grapperhaus instead proposed a new criminal offense entitled sex against will (seks zonder wil). He did not think that legally, it would be achievable for the courts to apply a new definition for rape. Additionally, he maintained that rape was a worse offense and thus should be a grade above what he terms “sex without consent”. He argued that he wanted to normalize that sex without consent was a crime, yet not incorporate it into the existing rape definition.


This is where the original Amnesty campaign began last year. While the proposal by Grapperhaus was a step in the right direction, it still did not address the issue that rape is sex without consent and does not require additional force. This legislation would still not appropriately label people who had committed this crime as rapists. Additionally the punishment for rape with force was considerably worse (eight years of prison as opposed to four). Instead of defining the offenses as one and the same, it did not recognize the idea that rape is sex without consent. Period. Grapperhaus even noted that “sex has to be voluntary and equal, that is the new social norm”. If this was true, why were the antiquated norms around rape still upheld?




Image Amnesty International NL


As a result, Grapperhaus was met with significant pushback from the public, spurred by awareness campaigns from Amnesty. He also got significant flak in parliament, including from the ruling party VVD. Member of Parliament for VVD Jeroen van Wijkgaarden said that “you are doing an injustice to victims if you don’t want to see sex without consent as rape”. As a result of the backlash, he eventually incorporated consent into the rape legislation. According to the renewed proposal, force is now an aggravating factor, meaning that the use of force may increase the punishment, but it is not a necessary factor in order for the courts to conclude that rape occurred. Thus, there would be no remaining distinction between rape and sex without consent.




Image from Amnesty International NL


Where does this leave us now? As you can see, the campaign is not over, in fact it was recently renewed with the ja-muur. This is because parliament has still not voted on this new proposal. After the resignation of the cabinet in response to a tax scandal, Grapperhaus is now only acting minister. The government is also occupied with the pandemic, but this hasn’t stopped them from passing a number of other bills. It is now a question of priorities; why is bringing rapists to justice put on the backburner? This is what Amnesty is trying to call attention to. The Ja-muur is an attempt to broadcast to politicians that Dutch people want new laws on this topic as soon as possible. With the elections coming up, it is important to show the politicians up for election that this change is urgent, and the Netherlands should be trying to catch up with other European countries in this regard.


This goes beyond justice in the courts as well, these changes are about sending an important message to Dutch society. Legal changes don’t just have an effect in punishing offenders in court, they have a societal impact. This legislation shifts the power balance from asking the victim what they did to defend themselves to asking the offender what they did to breach consent. Enshrining this language into the law normalises these ideas about consent and acts as a definitive representation of our norms. It is about making a law that represents what we already know: that any sex without consent is rape.

Read more about this in the links below, and add your voice to the campaign!


References:


https://www.amnesty.nl/qa-onvrijwillige-seks-verkrachting

https://www.government.se/press-releases/2018/04/consent--the-basic-requirement-of-new-sexual-offence-legislation/

Modernisering wet:

Dutch news sources


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