Not paying for sexual services ... Is that rape?
Introduction
"Already 26 complaints against 40-year-old who lured women into bed with ruse: police seek more victims". This message appeared in various media a while ago. Several women allegedly filed a complaint against a 40-something who promised them money in exchange for sex, but ended up not paying. The women in question would not have consented to sexual relations if they had known in advance that no payment would follow. Therefore, the prosecution considers these facts as rape.
Can this criminal qualification be axed from a legal standpoint?
The crime of rape
According to Article 375 of the Penal Code, rape is "any act of sexual penetration of any kind and by any means, committed on a person who does not consent to it." Thus, the absence of consent is an indispensable ingredient to speak of the crime of rape. [note]Report on the draft law amending certain provisions concerning the crime of rape, Parl.St. Chamber 1988-89, No. 702/4, 10; I. DELBROUCK, "Assault on the Honor and Rape," Mechelen, Wolters Kluwer, 2015, 55; A. DE NAUW and F. DERUYCK, Introduction to Special Criminal Law, Mechelen, Wolters Kluwer, 2020, 200.[/note]
A consent is valid only if it is arrived at on a voluntary and informed basis. [note]A. DIERICKX, Consent and criminal law, Antwerp, Intersentia, 2006, 246-247.[/note]
Withdrawing consent?
Can a sexual service provider -who has consented to sexual penetration- retroactively withdraw consent if the client fails to pay (correctly) after intercourse? The answer is no.
Since the instituted state of mind externalized after the commission of the conduct is not criminally taken into account in light of the question of the criminality of the conduct, a change in that instituted state of mind will not be taken into account therein either. Indeed, in the hypothesis referred to, during the commission of the conduct, a valid "consent" is present."[note]DELBROUCK, "Sexual Assault of the Venerability - the Crime," 17, no. 44.[/note]
A sexual penetration accompanied by valid consent constitutes impunity. This impunity must be permanently relied upon. To judge otherwise would manifestly violate the principle of legal certainty.
To suppose that valid consent could be retroactively abrogated so that the conduct became criminal in nature would be to tamper with one of the most fundamental principles of criminal law."[note]A. DIERICKX, Sexual penetration and valid consent in light of the crime of rape, NC 2010, 84[/note]
A conditional consent?
It could be argued that the sexual service provider gives consent only on the condition that the sexual services are properly paid for.
Can certain conditions be attached to a consent that determines the criminality of a conduct?
Euthanasia law doctrine refers to conditional consent. For example, reference is made to the fact that a person wishing to end his life deliberately may ask the doctor to administer euthanasia on a specific day -because it has a specific meaning- or at an unexpected moment or by means of a sleeping drug as well as an injection of a specific substance, or by another means.[note]A. FAHMY ABDOU, Le consentement de la victime, 129, footnote 159.[/note] Thus, the consent here depends on the time or manner of the conduct.
In general terms, reference can be made to the fact that the validity condition of voluntariness implies a directedness of the disposition of the person in respect of whom the conduct is made, to the conduct to be made by the other person, implies that the person whose disposition is involved also attach conditions to his consent.
This reasoning could also be applied to the situation of the sexual service provider who consents to sexual penetration only on the condition of payment.
However, caution is called for in this regard as there is as yet no general consensus in case law and legal doctrine as to whether the consent that is decisive for the delictal nature of a conduct, such as rape, can be linked to conditions. After all - when the fulfilment or non-fulfilment of conditions can only be assessed after the conduct - there is a de facto risk of falling into the situation of a retroactive withdrawal of consent.
A ruse
Article 375 of the Penal Code also contains some circumstances in which the victim's consent is deemed to be absent.[note]Art. 375, second paragraph of Sw.; I. DELBROUCK, "Assault on the Honor and Rape," Mechelen, Wolters Kluwer, 2015, 55.[/note]When the act of sexual penetration is forced by force, coercion, threat, surprise or trickery, or made possible by an unworthiness or a physical or mental defect of the victim, it is rape.[note]Art. 375, second paragraph Sw.; I. DELBROUCK, "Assault on Honor and Rape," Mechelen, Wolters Kluwer, 2015, 55; A. DE NAUW and F. DERUYCK, Introduction to Special Criminal Law, Mechelen, Wolters Kluwer, 2020, 201.[/note]
A ruse is an artifice that prevents the victim from acting in accordance with his or her real will."[note]DELBROUCK, "Assault on Honor and Rape," Mechelen, Wolters Kluwer, 2015, 57; I. DELBROUCK, "Rape," in X. Postal Memorialis. Lexicon criminal law, criminal procedure and special laws, Mechelen, Wolters Kluwer, 2020, (V130/1) V130/18.[/note] A ruse occurs when the perpetrator knowingly deceived the victim beforehand, or at the latest at the moment of penetration.
In case law, the ruse as a form of impairment of consent in the crime of rape is very rarely retained.
In this case, reference may be made to a judgment of the Court of First Instance Limburg, Hasselt Division dated 16.11.2018 which states, "One of the cases explicitly mentioned in Article 375, second paragraph of the Criminal Code is "ruse." There is a ruse when the perpetrator knowingly and intentionally deceived the victim beforehand or at the latest at the moment of sexual penetration. Thus, when there is consent to sexual penetration, but this consent was obtained in an invalid manner, there is rape. More generally, therefore, rape can also occur when the perpetrator has used lies or concealment of the truth to obtain consent. The concealment of certain information can also invalidate consent to sexual penetration. The court finds that by deliberately concealing his HIV infection, defendant knowingly misled the civil party. The defendant thus obtained consent to sexual penetration in the form of unprotected sex. Whether or not the partner has HIV infection is an essential element in the context of consent to sexual penetration, more specifically to unprotected sexual intercourse."
The case cited above concerns a rare example where a ruse prevents valid consent to sexual penetration, thus resulting in rape.
Indeed, according to the parliamentary discussion, the term "ruse" is to be interpreted restrictively so that the "dolus bonus" is not included under this legal figure.[note]Report on the draft bill amending certain provisions concerning the crime of rape, Parl.St. Chamber 1988-89, no. 702/4, 10.[/note]A ruse also implies an act such as, for example, administering narcotics, administering alcohol or impersonating someone else[note]DELBROUCK, "Sexual Assault of Honor and Rape," Mechelen, Wolters Kluwer, 2015, 57; I. DELBROUCK, "Rape," in X. Postal Memorialis. Lexicon criminal law, criminal procedure and special laws, Mechelen, Wolters Kluwer, 2020, (V130/1) V130/18.[/note]. Simple lies therefore do not seem to suffice. [note]DIERICKX, Consent and criminal law, Antwerp, Intersentia, 2006, 277.[/note]
The question of whether failure to pay for sexual services will be held up as a ruse by a judge on the merits cannot be answered unequivocally. Indeed, this question always involves a factual appreciation in which all the specific circumstances peculiar to the conduct in question must be taken into account.
The burden of proof regarding the presence or absence of a ruse on the part of a suspect rests with the prosecuting authority. This cannot ignore the fact that being unable to pay for a service does not necessarily constitute a crime. Indeed, the legislature presumes that due to some unfortunate circumstances, a person may sometimes be unable to pay a particular debt. While such a situation may give rise to a civil dispute, it is in principle outside the scope of criminal contentiousness.
If the act described as ruse has a repeated character, it could be argued that in such a case there is "consumption" well knowing that one is unable to pay.
This situation is reminiscent of the age-old crime of "cheating," which criminalizes someone who is in the utter impossibility of paying. This crime had to be explicitly provided for in the penal code since it cannot be catalogued under the heading of theft. Theft is the fraudulent appropriation of another's property. In the case of extortion, however, the goods are offered by the seller and are therefore not fraudulently stolen.
By analogy, this reasoning could be extended to the provision of sexual services for payment. However, following the principle nulla poena sine lege, it should be noted that the scope of the offence of pimping is limited to only three situations stipulated by law, namely having beverages or food served to him in a designated establishment, which he consumes in whole or in part there, having lodging in a traveler's hotel or in an inn, or renting a hired vehicle.
And although prostitution is the oldest profession in the world, sexual services are not restrained in Section 508bis Sw. Therefore, in the absence of legal provision, this situation cannot be criminalized on this basis.
Decision
It cannot at present be asserted with certainty that, if payment for sexual services is not forthcoming, there is always the crime of rape. After all, accepting that consent can be withdrawn retroactively goes against the principle of legal certainty. Linking consent to conditions finds little support today in case law and legal doctrine and could also give rise to legal uncertainty. Finally, whether non-payment is a ruse that calls into question consent to sexual penetration remains a factual appreciation whereby the legislator provides for a strict interpretation and the difficult burden of proof in this regard rests with the Public Prosecution Service.
The underlying ratio legis of the 1989 Act consists in the protection of sexual integrity. The crucial question to be asked in this regard relates to whether the sexual integrity of the sexual service provider who is not paid is compromised to the extent that the crime of rape arises. Since a sexual service is often a commercial activity, arguments could be invoked on behalf of a defendant to answer this question in the negative, arguing that the impairment is situated rather on a pecuniary plane so that the conduct is closer to the crime of extortion and an extension of the scope of this crime should be considered.
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