As of July 1, 2024, the Sexual Offenses Act is in effect. Following the introduction of this law, different forms of rape are included in the Penal Code. A distinction is made between guilty rape, intent rape and qualified intent rape.
For offenses allegedly committed before July 1, 2024, the old legislation still applies. In those cases, intent does need to be proven.
An example of rape is a situation where someone sexually intrudes without consent. Imagine a woman is at a party and passes out after a few drinks. A man who does not know her well sees her vulnerable condition and decides to penetrate her sexually without her consent.
Coercion no longer required for rape
Under the old legislation, the criminalization of sexual assault and rape required that coercion was demonstrated. Coercion was defined as the perpetrator creating circumstances, or abusing existing circumstances, that left the victim with no choice but to undergo the sexual acts.
With the introduction of the Sexual Offenses Act, this requirement of coercion is no longer a requirement for criminal liability.
Instead, coercion is now considered an aggravating circumstance in intentional crimes. This means that the presence of coercion can increase punishment, but is no longer a necessary condition for criminalizing sexual offenses.
What types of rape are there?
The Sexual Offenses Act replaced the old offenses of sexual assault and rape replaced by six specific offenses, including three related to rape:
- Debt rape (article 242 Sr):
- This refers to rape where the defendant is at fault, but not intentional.
- This refers to rape where the defendant is at fault, but not intentional.
- Intentional rape (article 243 Sr, first paragraph):
- This refers to rape in which the defendant acts intentionally.
- This refers to rape in which the defendant acts intentionally.
- Qualified intentional rape (article 243 Sr, second paragraph):
- This refers to intentional rape with aggravating circumstances that increase the seriousness of the act.
What is the difference between intentional and culpable rape?
The main distinction between the intent and guilt variants lies in the mental state of the offender when the sexual acts occur, especially when the victim has not given consent. In intentional rape, the defendant knows or is aware that the will is lacking. In culpable rape, the defendant mistakenly assumes that the will for sexual contact is there.
Both the intent and guilt forms of these offenses involve sexual contact while the victim did not consent. In both cases, there must also be clear signs that the victim's will was lacking, and the perpetrator must have actually noticed or should have noticed these signs.
What penalties can be imposed in cases of rape?
The maximum penalty that can be imposed in a specific case depends on when the offense was committed. There have been legislative changes that have also increased the maximum penalty. Therefore, it is advisable to contact our office so that we can explain to you what the maximum penalty is in a specific case.
The imposition of punishment by judges is customized. The punishment can vary depending on the severity of the offense and the circumstances under which it was committed. In practice, the punishment may also depend on factors such as recidivism, the specific circumstances of the offense, and the personal circumstances of the defendant.
An attorney at Kötter, L'Homme & Plasman Attorneys at Law can play an important role in a suspected rape case. One of our lawyers can point out to the judge that there is too little evidence. In that case, acquittal should follow. Sometimes it happens that a suspect has confessed to a criminal offense. In that case, a lawyer from Kötter, L'Homme & Plasman Advocaten can provide circumstances why a low(er) sentence should follow.
Is attempted rape punishable?
Attempted rape may also be punishable. It follows from Article 45 Criminal Code that an attempt to commit a crime is punishable, but there must have been a beginning of execution of the crime. The answer to whether there was a beginning of execution depends on the facts and circumstances of the case. Case law shows that what is important here is how close a defendant's conduct is to the completion of an intended crime.
In addition, a person must have actually intended to rape someone. In criminal law, this is also called (conditional) intent. (Conditional) intent exists if a defendant has consciously accepted the substantial probability that the consequence mentioned in the criminal provision will occur.
Attempted rape carries a lower maximum prison sentence than completed rape. This is because the maximum prison sentence for attempted rape is reduced by 1/3 of the maximum prison sentence for the completed crime.
Acquittal for rape?
With regularity, suspects are acquitted of this crime. An example is given below. The judge acquitted the defendant because the declarant's statement did not sufficiently demonstrate that she could not reasonably have expected to evade or resist the sexual acts.
Need a lawyer for (attempted) rape?
The attorneys at Kötter, L'Homme & Plasman Lawyers are experienced criminal law specialists and can assist you at the time you are suspected of rape. Our lawyers will discuss with you the criminal case file and together with you determine a strategy that can achieve your desired success. However, it is good for you to know that our attorneys do not sugarcoat your case; we provide sound, honest and sincere advice. Should you have to appear in court, they will carefully prepare you for the hearing. The attorneys at Kötter, L'Homme & Plasman Advocaten will ensure that you are represented in the best possible way during the hearing.
If you have any questions about this, please feel free to contact our office. You can send an e-mail to info@klpadvocaten.nl or (during office hours) call 020-6731548. In case of emergency (you or someone you know may soon be arrested), please contact us at our emergency phone number 06-24428734.
Read here more about what different sex offenses there are.
