Bridgerton controversy: marital rape of husband by wife?
The new and popular Netflix series "Bridgerton" is currently the most watched program in many countries.
The series is binge-worthy and is a real hype, no doubt the steamy sex scenes are in between for something. Yet one of these scenes just caused the series to receive quite a bit of criticism. Consequently, the series has already caused quite a commotion among the international community.
We are talking about the moment when Daphne Bridgerton decides to lure 'Duke' Simon Basset into bed, now that she knows about the way children are conceived. The scene in question shows how the protagonist takes matters into her own hands during one of their passionate moments: provided with a number of acrobatic postures, she ensures that he cannot leave the church before singing. This is because she very much wants children, but her partner has already indicated several times that he absolutely does not want this....
Therefore, according to certain public opinion authors, this scene involves sexual abuse, because there would be no valid consent. For this, they refer to the fact that Simon "wait" has said.
Without her better half's consent, the main character made the decision to attempt a pregnancy.
However, does this act qualify as rape under Belgian law?
The legislature has given the following definition to the crime of rape: [1]
"Any act of sexual penetration of any kind and by any means committed on a person who does not consent to it".
First of all, it is important to mention that a man -since the amendment of the law in 1989- can be the victim of a rape committed by a woman. However, a loophole in the current legislation is that according to the strict letter of the law, there must be victim penetration, whereas in the case of the crime of indecent assault, it refers to acts committed on the person or with the help of the person. Certain legal doctrine therefore holds that it is impossible for rape to occur when a man is forced to perform sexual penetration on a woman, and that these acts must be qualified as indecent assault.
Regardless, the big key question in this case remains whether the scene in question involved a valid approval. The absence of consent is an essential and fundamental constitutive element of the crime of rape.
A consent can be expressed in different ways. A consent can be given not only verbally, but also non-verbally. Consent can also be withdrawn at any time before or during the act.
The Supreme Court ruled on the constitutive component of "consent" as follows: [2]
"Denial of consent in the victim is a fundamental component of the crime of rape; consenting to physical intercourse does not mean consenting to any act of sexual penetration of any kind and by any means."
The Court wishes to make it clear that consent must be given again for each new type of sexual intercourse. If a victim withdraws consent before penetration begins or if consent is given to ordinary sexual intercourse but not anal intercourse, there is no valid consent.
If the factual elements show that the victim resisted, there will be absence of consent and consequently the crime of rape.
However, physical resistance is often not offered, not because of consent to the sexual act, but out of fear. Such reaction is also referred to in the scientific literature as the "frozen fright". This frozen fright implies that because of several factors (such as, for example, the inner urge to survive), the victim enters a psychologically numb state and, as a result, is no longer able to offer physical resistance.
Accordingly, the Court of Human Rights has held that the presence of consent may not be inferred from the mere absence of any resistance.
In the excerpt in question, the Duke clearly gives his consent to penetration. Nor does he offer any resistance. As he feels the end approaching, he does clearly state "wait". However, especially in the context in which the parties found themselves, this does not necessarily equate to "stop" and, in our opinion, does not show sufficiently unequivocally that Duke did not want to continue their frolic.
It seems to us, therefore, very difficult to legally substantiate the absence of consent in this story.
On May 22, 2019, the Dutch Justice Minister made the following proposal to define "sex against the will" comprehensively:
"The person who commits sexual acts with a person or causes a person to commit or undergo sexual acts while knowing or ought to know from facts or circumstances that these acts are done against the will of that person is punishable".
In our opinion, such a new description could provide solace in this case. But let's be clear: this is not a black and white story and there is a lot to be said about the scene in question should a court actually have to rule on it.
Questions about sexual assault or rape? Get information or advice from our specialized attorneys. Contact us at info@bannister.be or at 03.369.28.00.
Jan. 15, 2021
[1] art. 375 of the Criminal Code
[2] Cass. Oct. 17, 2007
