Dutch legislation against rape falls short in protecting victims, and a new bill does little to change that either. Amnesty International Netherlands writes this in a recommendation to the Ministry of Justice and Security on Monday.
The reason for this advice is the bill on the Sexual Crimes Act of the Ministry of Justice and Security. With this, Minister Grapperhaus (Justice and Security, CDA) wants to adjust the criminalization of sexual crimes in the Criminal Code. The “bar for punishment is sometimes too high for involuntary sex,” he says.
Also read: “No” doesn’t have to be spoken
Amnesty conducted a case law analysis of 72 rape cases, between 2017 and earlier this year. According to the organization, it appears from that investigation that evidence of coercion, crucial in the current rape offense, is short-lived. For example, judges must assess whether the victim has resisted, or whether the victim could not reasonably have resisted through coercion or violence. However, the overview of statements shows that coercion is difficult to demonstrate. Judges often find themselves in a split: in several cases they elaborated on situations in which it was clear that victims did not want sex, but then they had to conclude that this had not yet involved coercion or violence. Then there could be no punishment for rape.
Declaration in more situations
Grapperhaus wants victims to be able to file a report in more situations. In order to protect them also in situations where no obvious violence can be demonstrated, he proposes an ‘extension of the law’: the victims can then report ‘sex against the will’. That would be a new crime. For example, in cases where the victim was unable to resist. Sometimes there is freezing, where the victim “freezes” or freezes. A lot of clinical research has been done into that “survival response,” which, according to the Sexual Violence Center, occurs in 70 percent of incidents.
The old law does not offer victims sufficient protection in such a case, says Martine Goeman, researcher in the field of gender for Amnesty International. “We are very happy that Grapperhaus wants to change the law. He sees the problem. But the introduction of ‘sex against the will’ is not the right solution. ”
According to the human rights organization, the bill creates a ‘dichotomy’ and a ‘hierarchy’ of crimes. Penalties for ‘sex against the will’ are half as much as those for rape. “Moreover, the focus remains on the victim’s behavior,” said Goeman. “When it comes to what the perpetrator did: he wanted to have sex, even without consent. That should always be interpreted as rape. ”
There are more scenarios where the victim cannot indicate that sex is unintended, for example through alcohol or drugs, or because she or he was sleeping.
The proposal for the new law, published on May 12, has now been submitted for consultation. Amnesty writes in his input for this that it would be better if the minister would still put consent for sex first. Then sex against the will is also punished as rape. Moreover, according to Amnesty, a focus on consent means that Dutch legislation is more in line with international human rights, in which the integrity of every person is of the utmost importance.
Due to the various crimes, the victims are not only insufficiently helped in their legal process, Amnesty continues. The word usage is also harmful to their personal processing. They must be able to recognize what happened to them. In the recommendation document submitted Monday, a victim responds to that distinction: “Sex against will or rape? Do you hear how different those words sound? ”
In addition, says Goeman, a large majority of the Dutch think that “penetration without consent is rape”, even if no violence has been used. An opinion poll by I&O Research, published last month, shows that 76 percent agree with that statement.
The Amnesty researcher refers to the well-known La Manada case in Spain, which dates from 2016. Five men abused an eighteen-year-old drunk woman during popular festivals in Seville. “Spanish law also distinguished at the time between sexual abuse and forced rape. The country was too small when it turned out that those men were not convicted of rape, ”says Goeman. In Spain, a legislative change has been announced, without any division. In Sweden, consent is already assumed to be the most important criterion in rape cases.