Definition to Defence: Netherlands' New Rape Law

Introduction

The Netherlands is set to make a monumental leap in reshaping its legal discourse with the enactment of a new act to address sexual offences on July 1, 2024. The Dutch definition of Rape has seen significant evolution, reflecting broader shifts in societal attitudes. The trajectory began with women feminist movements in the 1970s highlighting rape as a violation of sexual autonomy, countering the prevailing notions of the act’s link with solely physical violence or honour. Reform finally came about in 1991 when the Netherlands revised its rape legislation after public debate and protests. Before 1991, the law only defined rape as sexual intercourse between a man and a woman outside of marriage, and the only required coercion was "violence or the threat of violence". The law also excluded rape in marriage. Article 242 of the Dutch criminal code, as modified in 1991, defined rape as “actions comprising or including the sexual penetration of the body that have taken place by force”. Force was specified as “coercion through violence, the threat of violence or through another act or the threat of another act”. The new law broadened the definition of coercion, but still required evidence of some form of resistance from the victim for a rape conviction. Over the next decades, even though the judicial interpretation of coercion in rape cases remained narrow, the Netherlands made a stride in covering marital rape in the general provisions as a crime.

The Netherlands attempted to resolve the requirements through the preliminary draft of the Sex Crimes Bill in 2020. The Bill created an offence called ‘sex against one’s will’ to punish involuntary or non-consensual sex. Amnesty International’s campaign was an attack against the artificial distinction between non-consensual sex and rape when non-consensual sex is rape. The rejection of the 2020 Bill is consistent with Anderson’s critique of the requirement of force for the qualification of rape. In her work titled ‘All-American Rape’, Anderson distinguishes between the classical rape narrative (stranger rape by a Black man on a White woman through the use of violence) and the typical rape (acquaintance rape by man on woman without aggression by rapist or resistance by victim). She argues that the survivor of a typical rape does not physically fight the rapist, but usually only cries or passively submits.

These campaigns and protests drew attention to the shortcomings of the existing legal framework and called for more comprehensive reforms to address issues such as victim-blaming and systemic barriers to justice. In response, a new bill of 2021 was introduced and passed, making it sufficient for there to be “knowledge or serious reason to suspect that sexual acts are taking place while the other person's will to do so is lacking”. The bill furthermore distinguishes between sexual assault and rape that is intentional (Articles 241 and 243) – with a higher maximum penalty in case of force, violence, or threat – and sexual assault and rape where intent cannot be established, but where the perpetrator had serious reason to suspect that the other person did not consent ('guilt variant' – Articles 240 and 242). Central to the new threshold for sexual assault and rape is the introduction of “sex without consent”, marking a departure from the existent requirement of coercion or force in defining rape. It makes sexual contact with someone the initiator knows, or suspects is unwilling, punishable as a form of assault or rape. This shifts the focus from the actions of the perpetrator to the absence or presence of voluntary and unequivocal agreement from the victim. Consequently, a model emerges encompassing guilt, intent, and qualified variants of sexual assault and rape.

This view has been considered more seriously by the Netherlands and is reflected in the Sexual Offences Act 2024 which replaces the force-based definition of rape with the consent-based definition. The legislation aims to align the Dutch Law with the evolving global understanding of bodily autonomy finding expression in the #MeToo movement, and  International Human Rights obligations. This transition in rape law aligns with international legal precedents, such as the 2004 decision of the European Court of Human Rights (ECHR) in the M.C. v. Bulgaria case which emphasised that any non-consensual sexual act must be punished, even when the victim did not physically resist. Based on similar principles, Article 36 of the 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) classifies rape and all non-consensual sexual acts as criminal offense.

In the Explanatory Memorandum of the new Bill, ‘tonic immobility’, or ‘freezing’ by the victim as a fear response to sexual assault, is recognised as a rationale for moving away from the requirement of coercion and resistance as proof of rape. The absence of consent can be evidenced through explicit verbal or physical resistance or marked passive behaviour. Both parties must express clear intent towards sexual contact, either verbally or through responsive actions, under the legislation placing greater responsibility on the initiator to ensure positive consent, especially given the reduced threshold for criminal liability. To convict for intentional assault or rape, it is sufficient that the perpetrator knew or should have known about the lack of consent based on observable facts and circumstances, expanding the reporting scope, and enabling swift law enforcement intervention. The statutory maximum penalty is four years' imprisonment or a fourth category fine for the act of “guilty rape” under the newly altered Article 242. “Intentional rape” carries a prison sentence of not more than nine years or a fifth category fine, whereas twelve years' imprisonment (or a fifth category fine) is stipulated for “Qualified rape with intent” as under Article 243. 

It is imperative to note that not only does this necessitate an examination of the defendant's state of mind regarding the victim's consent but the subjectivity of "reasonable belief" becomes pivotal in determining culpability. However, this standard is not devoid of societal perceptions and biases, evident in the norms and mores regarding gender roles and sexual morality.

The legislation stands to benefit the victims, offering enhanced channels for reporting crimes and providing support professionals with clearer directives on prosecutable offences. This dovetails with the objectives of the national campaign "What can help me," aimed at enhancing victim confidence in reporting crimes, consequently streamlining access to crucial information, assistance, and support.

Although the law seeks to broaden the scope of liability and provide greater protection for victims, the concept of consent reveals a terrain laden with philosophical, moral, and legal complexities. This places the burden of proof on the prosecution to demonstrate the absence of consent, relying on retrospective assessments of the parties' thoughts and intentions and that becomes particularly challenging. The private nature of many sexual encounters adds another layer of complexity. If there are no witnesses or physical evidence, reliance would be on the testimonies and interpretations of the events which can create opportunities for doubt and scepticism if any discrepancies or inconsistencies arise. The passage of time also creates complications as memories fade, perceptions change, and evidence may become less reliable if the suit is filed after long. This temporal gap not only poses challenges for gathering evidence but also for assessing the credibility of witnesses and claims. This raises the issue that while consent-based approaches to rape law may align with principles of individual autonomy and justice, its implementation can present significant challenges.

Defining Rape: Force vs Consent

Different states criminalise rape based on the varying definitions of rape as either use of force, or lack of consent, or both. Common law in England traditionally required proof of force as well as non-consent. Blackstone defines rape as the ‘carnal knowledge of a woman forcibly and against her will’. The dual requirement of force and non-consent advance two issues: firstly, it imposes an unnecessarily high threshold for the prosecution and conviction of rape as the survivor needs to prove that she resisted the rape (‘against her will’) and that the perpetrator overcame her resistance through coercion or violence (‘forcibly’); and secondly, it affirms a sadomasochistic understanding of sex whereby forced sex can be consented to by the victim, and an acceptable level of force can be determined through adjudication.

Defining rape only in terms of force results in the criminalisation of the external elements of physical assault and violence rather than the sexual violation itself. It results in the absurd implication that sexual violation without violence is not rape.

Force-based definitions of rape have been problematised for their inability to account for the experiences of sexual assault survivors. The requirement of proof of force or the threat of force dismisses the incidents of non-consensual sex without force and refuses to label them as rape. It also contributes to the perception that it is the survivor’s responsibility to protect themselves against rape. In doing so, it privileges the definition of rape on the survivor’s resistance to such force exerted by the rapist, creating the archetype of an ‘ideal victim’ of rape. The ‘ideal victim’ is an amalgam of sexist gender stereotypes and patriarchal myths about the conduct of a ‘good woman’ which perpetuate rape culture, or the social practice of victim-blaming and normalising sexual violation. 

The resolution of the problems of force-based definition of rape has diverged into two approaches: the complete elimination of the requirement of force, and the creation of two separate offences based on the definitional categories. While the first approach defines rape solely on the absent of consent on the part of the victim, the latter involves the recognition of two offences: the criminalisation of non-consensual sex that is based on the victim’s non-consent, and the criminalisation of forced sex that is based on the perpetrator’s use of force.

India: Consent on Paper, Force in Practice

In India, rape is defined as the commission of the sexual acts described in s.375 (a) to (d) under seven circumstances that delineate the spectrum of consent. Explanation 2, added to the IPC through the Criminal Law (Amendment) Act 2013, defines consent as an ‘unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act’ and specifically provides that the consent will not be assigned to a woman only by reason of her lack of resistance. The definition of rape has hinged on the consent of the woman since the enactment of the IPC in 1860.

However, the law as given by the Code is not always implemented in the Courtrooms. The Mathura case, which sparked the 1983 Criminal Law Reforms, is a prime example of the judicial incorporation of the element of force in the proof of rape. The Supreme Court acquitted two policemen on the grounds that there was no indication of resistance by the survivor. Four law professors wrote an Open Letter to the Court, criticising the Court’s inability to differentiate between ‘submission’ and ‘consent’. Despite protests and reforms, some judgements of the Indian judiciary (Mohd. Habib v. State 1988, Public Prosecutor v. Yejjala Ramaswamy 2004, Dilip v. State of Madhya Pradesh 2013, Raja v. State of Karnataka 2016) continue to conceptualise submission as consent.

Thus, the consent-based definition of rape that has been envisaged by the law in India since 1860 is sometimes converted into a force-based definition of rape in the process of adjudication. 

Mens Rea

Mens Rea or ‘guilty mind’ is the criminal law requirement of the culpable state of mind of the offender while committing the crime. Mens rea is usually classified into four categories: intent, knowledge, recklessness and negligence. In contrast, strict liability offences do not require proof of the offender’s mens rea.

Netherlands’ Sexual Offences Act 2024 provides for three kinds of rape based on the offender’s state of mind. Culpable sexual assault criminalises the performance of sexual acts while the offender ‘has serious reason to suspect that that person lacks the will to do so’; Intentional sexual assault criminalises the same actus reus committed with intention; Aggravated Intentional sexual assault criminalises sexual assault accompanied by coercion. The offences are assigned varying severity of punishments with Culpable sexual assault being least severely punishable and Aggravated Intentional sexual assault being most severely punishable.

The Explanatory Memorandum states that the distinction between negligence (culpable sexual assault) and intention (intentional sexual assault) is not relevant to the extent to which the sexual act violates the bodily autonomy of the victim, but is important for the quantum of punishment.

Whether mens rea should be requirement for conviction at all is a concern that has been subject to debate in rape jurisprudence. In England, the case of DPP v. Morgan 1975 set the precedent that the defendant’s honest belief that the victim was consenting, however unreasonable that belief may be, would excuse him from liability. In California, the Supreme Court judges held in People v Mayberry 1975 that the defendant’s honest and reasonable belief that the victim consented would be a valid defence.

The requirement of mens rea has been criticised by feminists for its ignorance of the gendered view of sexuality. Catharine Mackinnon rejects the approach that decides the existence of the victim’s violation from the defendant’s belief. In her view, this amounts to defining the crime from the male perspective and erasing the woman’s experience of injury altogether. If consent is determined from the rapist’s belief, then ‘the man’s perceptions of the woman’s desire determine whether she is deemed violated’.

Feminist scholars have also cast doubt on the objectivity of the ‘reasonableness’ of the belief. The standard of reasonableness, derived from the social inequality of genders, is inevitably male. Ramanathan’s work on the relationship between gender and reasonableness by explicating the judges’ understanding of reasonableness through the analysis of several cases shows that the reasonable man is patriarchal and is entitled to privileges on account of his maleness, and the reasonable woman (according to men) is subservient to her father and husband. ‘She does not exercise choice… She does not complain of rape’.

Thus, conviction for rapes on the establishment of mens rea is unfair to the survivor as it legally dismisses her injury if her rapist believes that she consented to the sexual acts.

India: mens rea?

In India, s.375 does not explicitly mention the proof of culpable mental state of the defendant to convict him for rape. The silence of the legislation has enabled the simultaneous existence of two conflicting arguments: one, that rape is a strict liability offence in India; and two, that defendants can successfully use the defence of mistaken belief, limited by s.79 (the belief must be held in good faith) and s.52 (the defendant must have exercised due care and caution) of the IPC.

The Farooqui judgement of the Delhi High Court in 2017 acquitted the defendant on the grounds that he lacked the mens rea as he did not discern the victim’s lack of consent. The Supreme Court dismissed the appeal and stated that the judgement (which held that ‘a feeble no may mean a yes’) was ‘extremely well decided’.

Mrinal Satish argues that s.375 ‘starkly contradicts’ the understanding of the Court that the prosecution must prove that the defendant perceived the victim’s lack of consent, that is, the defendant possessed mens rea. He condemns the Court for allowing mistake of belief as a defence to rape when the IPC rejects this approach.

The requirement of mens rea to rape the victim is not necessary, and neither is the absence of such mens rea a defence to the crime of rape. The Farooqui case is an outlier in India. It shows how the inclusion of mens rea as a prerequisite for conviction could lead the Court to affirm patriarchal assumptions about women’s sexuality.

Conclusion

The preceding analysis of the recently amended Dutch law and the constantly evolving Indian law on rape reveals that the Legislature in India has incorporated a relatively greater amount of radical feminist perspective on consent and mens rea in the criminalisation of rape. Indian law had a consent-based definition of rape since the enactment of the IPC in 1860, and the Code does not mention mens rea as a requirement for the proof of rape. Thus it avoids the patriarchal pre-requisites of the involvement of force/resistance and intention/knowledge for a rape conviction. The Netherlands, contrastingly, has only adopted a consent-based definition of rape in 2024, and it further complicates the proof of rape by necessitating the mens rea elements of intention or negligence on the part of the defendant.

However, despite the progressive appearance of the law in the IPC, the application of the law by the judiciary continues to be influenced by notions of rape culture and victim-blaming. The reflection of these patriarchal and harmful sentiments in several cases adjudicated by the High Courts and the Supreme Court points towards the normalisation of rape in court rooms. This calls for the expansion of state action from the sole avenue of criminal law to the broader solution of social change. It becomes imperative for the engagement with criminal law to be supplemented with changing the social and institutional structures of patriarchy that continue to enable the injustice against women.

[The blog post is credited to Madhumitha Shankar (Senior Editor) and Anjali Rahul (Editor)]