Major sexual criminal justice reform on the way: tougher deterrence but more alternatives.
Today, the Council of Ministers approved the preliminary draft of the law for the sexual criminal justice reform approved. The legislature has a long-awaited and sweeping change in mind when it comes to sexual criminal law.
The current criminal code dates from the 19e century. Society and its norms & values have logically evolved considerably since then. There is a need for a modern sexual penal code that reflects these contemporary norms. In addition, public opinion is increasingly crying out for harsher punishment.
As such, the bill aims to make several sweeping changes and updates to the sexual criminal law.
1. Consent is central
There will only be a sexual offense when there is a lack of consent. The definition of consent will be explicitly included in the new legislation:
"Consent presupposes that it is freely given. This is judged in light of the circumstances of the case. Consent cannot be inferred from the mere absence of defense by the victim. Consent may be withdrawn at any time before or during the sexual act. In any case, consent does not exist if the sexual act is the result of an assault, threat, violence, surprise, ruse or other criminal conduct. Nor is there consent if the sexual act has been committed to the detriment of a person who is in a vulnerable state as a result of unconsciousness, sleep, fear, the influence of alcohol, narcotics, psychotropic substances or any other substance with a similar effect, a disease or a physical or mental defect or inadequacy, which has impaired free will."
2. Increase maximum punishment for the crime of rape
The crime of rape (without aggravating circumstances) is currently punishable by a maximum of 5 years in prison. However, the new legislation intends to double this threshold: rape will be punishable by a sentence of 10 years in prison. Logically, in the presence of aggravating circumstances (threat, administration of defenseless substances, incest, sexual assault by a partner, discriminatory motive, position of authority, victim's minority/vulnerability), sentencing is also increased: All aggravating circumstances consistently go up a flight of stairs.
3. Expanding penal arsenal of sex offenses.
At present, the court is limited in imposing alternative sentences in sex offenses. For example, community service, autonomous probation, a sentence under electronic monitoring cannot be imposed if a person is convicted of a committing the crime of rape.
However, the legislature prioritizes individualization and tailored punishment: the court will be able to impose any sentence. In this way, the underlying issues in a sex offender can be better addressed by being able to impose counseling as an autonomous probation sentence.
4. Lowering age limit sexual majority.
Also on the table, but not yet confirmed, is the lowering of the age of sexual majority.
Currently, this limit is set at 16 years of age. This means that when a person performs sexual acts with someone under 16 years of age -even though permission is very clearly given- this person automatically commits the crime of indecent assault.
However, this age is often inconsistent with the contemporary freer sexual reality of young people. In addition, this age limit is very contradictory to the age limit in the crime of rape.
A minor may in fact consent to sexual penetration from the age of 14, but the adult who complies with this request is thus committing at present under current law always the crime of indecent assault because this age limit is thus set at 16.
The legislature responded to this peculiarity with the new bill and proposed lowering the age limit to 14: the age of consent to sexual intercourse could drop from 16 to 14.
However, there is one condition attached to this reduction: a young person of 14 years of age or older can only give permission if the age difference with his or her partner is no more than five years and there is no power relationship towards the young person.
Specifically, this means that a 14-year-old person will be able to engage in sexual acts with a 19-year-old person without being subject to criminal prosecution for doing so when:
- There is no power relationship between the two;
- Both have given their consent.
5. Expanding definition of voyeurism
Currently, a person can only be prosecuted if they covertly spy on persons or distribute pictures of them when they are completely undressed. However, the new legislation will also allow individuals to be prosecuted if they are spied on, for example, in their underwear.
The preliminary draft law will now be sent to the Council of State for its opinion. Afterwards, it will be submitted to Parliament. So substantive changes can still take place. In any case, we will keep you informed!
Would you like more information about this or to be assisted by a specialized vice lawyer? Please feel free to contact us at info@bannister.be or at 03.369.28.00.
April 2, 2020
