Can you be blackmailed after sex? And more questions about new sex law
Sex with someone who doesn't want it, becomes punishable. No is no, but if someone does not say no, that does not automatically mean consent. That is the premise with which Justice Minister Grapperhaus wants to amend the law.
What consequences could this have? We try to answer that in seven questions we received from you today in response to this news.
What exactly is changing?
Sex with someone who doesn't want it should become punishable by Minister Grapperhaus. This would involve sex with someone you know, or could know, that the person does not want it. "It is an important extension of the law," Grapperhaus told the NOS Radio 1 News. "Because now it is still necessary to prove coercion." That means some form of (psychological) pressure or force must have been applied by the perpetrator. In the new law, that coercion requirement has been taken out.
Why do proponents of the law think explicit consent is necessary?
Not all victims of sexual abuse are able to actively resist, says Willy van Berlo in the NPO Radio 1 program Spokespeople. She is affiliated with Rutgers, the knowledge center for sexuality. "Victims freeze with fear and don't dare say anything anymore," she says.
That also happened to Anke Laterveer. She was assaulted at a Tinder date. "I was still able to say I didn't want it, but when he persisted I could only endure it. I couldn't think anymore, couldn't move. Many people stiffen when something like that happens to them." Laterveer therefore welcomes this bill. "When I went to report it, I was told that it was just allowed. The police couldn't do anything, which was incredibly shocking and damaging."
According to Van Berlo, victims like Laterveer have no leg to stand on under current law. "The new law offers them additional protection."
Do you have to keep asking for permission now?
If you don't say no, that means no yes. But what should you agree to? If you say yes to sex, how explicit should you be in that? Grapperhaus' proposal does not explain this in detail. It does say that the importance of preventing someone from becoming a victim should outweigh the possibility that an offender has not been paying attention.
It is impractical to ask very explicit consent, thinks Linda Duits. She specializes in gender and sexuality and is affiliated with Utrecht University. "Sex is a process, in which your preferences keep changing. Your boundaries can also shift during sex," she says. "Consent in advance is therefore worthless, because you have to be able to withdraw your consent. Giving consent at every step is not doable."
She suggests we better look at the bdsm scene and how mutual consent is handled there. "In the bdsm scene, talking about consent is part of the culture. Limits and risks are discussed in advance, and the use of safe words is standard."
Can you be blackmailed afterwards?
One word against another is the practice in many vice cases that come before the courts. "Has the minister considered what this does to a suspect's evidentiary position?", wonders attorney Justin Kötter. He specializes in vice cases and does not think Grapperhaus' proposal makes sense. "The two stories I often hear are: 'I was raped' and 'I was blackmailed.' Especially with ex-relatives, it suits some people to say they were abused."
What matters in the bill is whether you know someone is doing it of their own free will. "The judge determines whether those circumstances occurred," Grapperhaus said. "And whether they did, you can very well determine for yourself."
Kötter questions that. "It almost seems that the minister wants to reverse the burden of proof. That is very bad. It is up to the prosecution to provide evidence. Must suspects now provide evidence themselves? Grapperhaus lowers the threshold for reporting, but thus also for making false reports."
Will this lead to more convictions?
The LANGZS Foundation, the national advocacy network for sex victims, believes the law will be mostly symbolic. "Sexual offenses usually take place in a one-on-one situation without witnesses," the organization states. "That makes it difficult to construct a track record that can lead to a conviction. That was true under the current law and will continue to be true under the new legislation."
Laterveer also does not expect the change in the law to lead to more convictions. "It is already quite a step for victims to hear: this is indeed not allowed, it is very bad what happened. Whether it can be proven is a second thing. Whether my perpetrator could have been convicted I don't know either, but it does help with processing. For me it would have made a big difference."
How can you ensure mutual consent without ruining the atmosphere?
"I think you know very well whether another person wants to or not," says Van Berlo of Rutgers. "And if you don't know, you ask. You don't have to ask everything verbatim, but if you're not sure then you do. I can't imagine you would ruin the atmosphere with that. Be clear about what your boundaries are and respect that in another person as well."
Have stricter laws like in Sweden helped?
In Sweden, stricter legislation has been in place since last year: sex without explicit consent is prohibited. Spain is working on similar legislation.
The law criminalizing sex against the other person's will is called the "consent law" in Sweden. The law was introduced on July 1 last year and was a response to the #MeToo movement. "Social Democratic Prime Minister Stefan Löfven wanted to make it clear with the new law that he would actively act against sexual violence," says correspondent Rolien Créton. "But the law is controversial in Sweden. Critics say the stricter rules have only symbolic value: after all, the burden of proof has not changed. Large studies on the effect of the law have not yet been done."
However, the Swedish public broadcaster did investigate 20 convictions for sexual violence last year. In four of the twenty, the new law played a role. But these four cases would have resulted in convictions even without the adoption law, according to critics. "Moreover, lawyers warn of social pressure for more convictions," Créton said. "It is also possible that the number of convictions for sexual violence will actually decrease in the long run. In that case, according to lawyers, the Swedish legal system loses considerable credibility."
In Spain, a committee of experts is working on a bill that would equate sexual abuse with rape, correspondent Rop Zoutberg reported earlier this year during the criminal case against Dutch high school student Charly T. The 17-year-old boy received a sentence of a year and a half in prison for sexually abusing two British girls during a vacation in Alicante. During the trial, T.'s lawyers tried unsuccessfully to show that the girls agreed to have sex.
"Also before parliament is a proposal from the Social Democrats that would make sex without an emphatic yes always punishable. But the treatment is going incredibly slowly," Zoutberg says. "The issue is enormously sensitive in Spain. This is because of the criminal case against the group of men who abused a girl in Pamplona. These men have not yet been locked up. Quite a few Spaniards feel that the judges are doing far too little in this case, nor do they have sufficient legal tools."
