From coercion to consent: Dutch rape law reform and the complexities of consent

Abstract

Rape law reform currently ranks high on the agenda of many criminal justice systems. In this context, the distinction between different conceptions of rape as either consent- or coercion-based has traditionally played an important role. This paper analyses the shift from a coercion to a consent-based model of rape, using Dutch law as a backdrop to take a closer look at the ongoing discussion on how to regulate rape, as well as the uncertainties and complexities that reforms need to address. It departs from a theoretical level and first outlines the main features of the two aforementioned models of rape. Subsequently, the paper looks at the international level and the emerging European definition of rape. Next, the current Dutch coercion-based model as well as the pending consent-based reform proposal are discussed. To shed further light on the conceptual architecture and inherent definitional complexities of consent, a comparison with the consent-based system of England and Wales is undertaken. This helps to gauge the current Dutch proposal and highlights complex (normative) questions that rape law reform needs to address, providing impetus for future discussions as to how the guidance and scope of protection of sexual autonomy provided by consent-based models of rape may be further improved.

1. Introduction

The law of rape has long been the subject of considerable debate. This is understandable, considering that sexual offences in general and rape laws in particular regulate human sexual relations, the most intimate form of human interaction. The manner in which rape is regulated generally reflects a society's norms about gender roles and sexual morality. ¹

While rape has always been considered a serious offence, its definition, scope, underlying rationales and protected legal interests have changed in the course of history. ² Changing social norms about what constitutes sexual misconduct, as inter alia evidenced by the #MeToo-movement, have recently provided new impetus to the debate and have led to reform efforts in various jurisdictions as well as on a European level. Nevertheless, despite current and past reform efforts, the law of rape remains a difficult area to navigate, riddled with complex normative questions and plagued by conceptual difficulties. It seems therefore pertinent to analyse these issues more closely from a comparative perspective to highlight which aspects national or European reforms need to consider carefully.

On a conceptual level, it is now widely recognized that sexual autonomy is a key element safeguarded by rape offences. Yet different models of rape exist in penal systems, leading to varying scopes of protection for victims. In this respect, legal theory makes a distinction between consent-based and coercion-based models of rape. The Dutch system, at the time of writing, still constitutes an example of a coercion-based model of rape. However, a legislative proposal is currently pending, which, if it enters into force as planned in 2024, will make consent the central element of rape and sexual assault. ³ The Dutch debate provides an ideal backdrop to take a close look at the ongoing discussion on how to regulate rape, as well as the uncertainties and sticking points that reforms need to address.

This paper seeks to analyse the shift from coercion to a consent model in criminal law, using the Dutch reform proposal to highlight problem areas. It is structured as follows. First, departing from a theoretical level, the two main models of rape, their main features and shortcomings are outlined (section 2). Subsequently, the paper looks at the international level and briefly outlines the burgeoning European definition of rape, which embraces consent as the central element of rape (section 3). Next, the current Dutch coercion-based model of rape will be discussed to assess how this model aims to safeguard victims’ interests and which gaps such an approach may create (section 4). Afterwards, the analysis turns to the consent model of rape to demonstrate how it seeks to protect sexual autonomy and which difficulties and complexities may arise when trying to translate this abstract concept into concrete legal rules. To do so, the currently pending Dutch reform proposal is discussed (section 5). To shed further light on the conceptual architecture and inherent definitional complexities of consent, a comparison with the consent-based system of England and Wales will be undertaken (section 6). This will help to gauge the current Dutch proposal and highlight complex (normative) questions that rape law reform needs to address. It is hoped that this will provide impetus for discussion to further improve the guidance and scope of protection of sexual autonomy provided by consent-based models of rape. The final section concludes (section 7).

2. Defining rape: Two models and the gravamen of rape

The different models of rape persisting in national law diverge on the question of in which form of conduct the gravamen for criminalization, that is, the wrongfulness of the offence, ought to be located. Here, two competing views see the gravamen of rape in either coerced/forcible sex or sex without consent. ⁴ Traditionally, many jurisdictions have defined rape in terms of coercion and force. The focus of this coercion model rests largely on the conduct of the offender prior to the sexual act and requires that this conduct coerced the victim to undergo the sexual act. ⁵ The core of the wrongdoing in this conception of rape thus rests on the coercive impact of the conduct.

Yet coercion can be exerted in different forms and gradations and the scope of liability and protective function of the law therefore hinge on the definition of this concept. Accordingly, broader and narrower versions of the coercion model can be distinguished. ⁶ A narrow conception of coercion in the context of rape will most likely focus on the use of physical force or violence in order to commit a sexual act. To prove that the perpetrator used force to commit the sexual act, courts and legislators often required evidence of resistance. ⁷ This leads to a very narrow scope of liability with a stern focus on the conduct of the perpetrator, i.e., the sexual aggressor, while turning a blind eye to the victim. Thus a narrow coercion/force-based approach is clearly fatally under-inclusive, as many forms of wrongful, non-consensual sex may not necessarily involve force. ⁸ It is furthermore at odds with fundamental principles of liberal criminal law, such as agency and autonomy. ⁹ Broader conceptions of coercion, on the other hand, move beyond physical force and include a range of behaviours and situations that remove the victim's ability to control intimate behaviour. Although framed in terms of coercion, such a model may serve to protect the will (i.e., consent) of the victim as well as sexual autonomy, even though more indirectly, by focusing on overcoming the will of the victim.

Anyhow, the coercion model has also been criticized on the basis of a historical argument, identifying it as a remnant of more patriarchal times, which creates a narrow scope of liability and primarily serves to reinforce the interests of men, to whom women were deemed to belong, ¹⁰ rather than protecting female victims in their own rights and dignity. ¹¹ Despite this criticism, the coercion model of rape is still prevalent in many European countries. ¹² Yet dissatisfaction with the coercion model of rape has led to law reforms in several penal systems. ¹³ These reform efforts have been propelled and go hand in hand with a marked change in social attitudes towards sexual misconduct. ¹⁴ Feminist scholars, activists and NGOs have also long argued for law reforms as a starting point for changing social norms. ¹⁵

The counterpart to coercion-based conceptions of rape can be found in so-called consent models. According to this approach, rape liability is based on (the lack of) consent. Consequently, rape requires that the perpetrator imposed a sexual activity on the victim and that such act was non-consensual. ¹⁶ The focus on consent is often explained by pointing to the criminal law's commitment to autonomy. ¹⁷ Due to, amongst others, the aforementioned social changes, autonomy, ownership of one's own body and gender equality have become more central values, as was previously the case in contemporary societies and their criminal law frameworks. Consent, so the argument runs, better and more fully protects sexual autonomy. In the consent model, liability for rape will arise if the victim did not consent to the sexual act and the perpetrator acted with the necessary mens rea prescribed by law. This broadens the scope of liability, as now also conduct that was not coerced (by force) but nevertheless was non-consensual can give rise to criminal liability. This shifts the focus to the perspective of the victim and the violation (s)he experienced. Just as is the case with regard to the coercion model, here also a distinction can be drawn between broader and narrower versions of consent models. Just like coercion/force, consent is a vague construct, which may, depending on the adopted definition, be over- as well as under-inclusive. ¹⁸ The scope of protection awarded to victims thereby, inter alia, depends on the underlying concept of autonomy, the definition of which is highly controversial, and the capability of the system to take into account the broader circumstances under which choices are made and consent is given. ¹⁹ Thus, both models have their shortcomings. Yet, despite the definitional complexities surrounding the two models, the consent model has now been embraced on a European level.

3. The emerging European definition of rape

According to the case law of the European Court of Human Rights (ECtHR), rape is generally considered as an act of torture or degrading human treatment, violating Article 3 ECHR, ²⁰ and/or as a violation of Article 8 of the Convention (the right to respect for private and sexual life). ²¹ States are under a positive obligation to utilize criminal law to provide effective legal protection against rape, ²² which requires ‘[…] the penalization and effective prosecution of any non-consensual act, including in the absence of physical resistance by the victim’. ²³

Accordingly, the Convention on preventing and combating violence against women and domestic abuse (Istanbul Convention) ²⁴ defines rape in Article 36(1) as (i) engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object; (ii) engaging in other non-consensual acts of a sexual nature with a person; (iii) causing another person to engage in non-consensual acts of a sexual nature with a third person. The Convention does not entail a definition of consent but merely states that ‘consent must be given voluntarily as the result of the person's free will assessed in the context of the surrounding circumstances’. ²⁵

In addition, in 2022, the EU Commission came forward with a far-reaching proposal to adopt EU-wide rules to combat violence against women and domestic violence. The proposed Directive aims, amongst other things, to establish minimum rules to criminalize rape, female genital mutilation and cyber violence. ²⁶ The EU legislator considers rape as a form of gender-based violence based on gender inequality ²⁷ and one of the most serious offences breaching a person's sexual integrity. ²⁸ A full protection of this legal interest can, according to the EU, only be achieved by a consent-based model of rape, in which consent is a ‘central and constitutive element of the definition of rape, given that frequently no physical violence or use of force is present in its perpetration’. ²⁹ Accordingly, Article 5(1) of the proposal defines rape as: (i) engaging with a woman in any non-consensual acts of vaginal, anal or oral penetration of a sexual nature with any body part or object; or (ii) causing a woman to engage with another person in any non-consensual act of vaginal or oral penetration of a sexual nature, with any bodily part or object. ³⁰ Both European legislative acts thus clearly embrace consent as the central element of rape, ³¹ which also provides further impetus to national reform movements.

4. The Dutch coercion-based rape model

A. Introduction

Dutch law currently adopts a coercion-based model of rape enshrined in Article 242 ³² of the Dutch Criminal Code (DCC). Accordingly, the central conduct element of rape is coercion, and the provision seeks to protect the sexual integrity of the person. ³³ Coercive conduct is subsequently further defined and divided into four coercive means and the ensuing result, i.e., the sexual penetration of the body. According to the case law of the Supreme Court, coercion can be established in cases where the perpetrator intentionally causes the victim to engage in the (sexual) activity against his/her will. ³⁴

This linkage between coercive means and the resulting penetration implies a causal connection, which furthermore means that the employed means must be of sufficient severity and aimed at prompting sexual contact in order to be qualified as coercion. ³⁵ The employed means must be of such a nature that the victim succumbing to the coercion can generally be expected. ³⁶ Thus coercion must be of such quality that the sexual penetration was according to reasonable expectations inevitable for the victim or that the perpetrator created a threatening situation from which the victim could not withdraw. Ignoring the victim's rejection as well as the exploitation of group dynamics and creating situations of dependency may lead to the establishment of a causal link. ³⁷ Furthermore, sexual conduct by surprise may also be qualified as coercion. ³⁸ The scope of coercion is further extended in case law, which established that physical contact between the victim and the perpetrator is, in certain circumstances, no prerequisite to prove coercion. ³⁹ Moreover, to establish coercion resistance is, according to settled case law, not required. ⁴⁰ In addition, initial consent by the victim will also not bar the finding of coercion. ⁴¹

In any case, the provision only protects victims against coerced sexual penetration by others, as it requires that the person using coercive means also commits the sexual penetration. Therefore, the current Dutch offence does not cover coerced sexual penetration by the victim him/herself. ⁴² This also means that if the perpetrator coerces the victim to penetrate someone else, this cannot be qualified as rape, excluding certain forms of male rape from being labelled as such. ⁴³

B. Coercive means

The means of coercion enumerated in Article 242 DCC are use of force or other acts, as well as, threat of force or other acts. Force generally means physical force and must be of a sufficient degree, exceeding the physical force involved in sexual penetration itself ⁴⁴ and capable of overcoming the victim's resistance. ⁴⁵ However, it is not required that the applied force did leave any marks. Under certain circumstances, a sudden, unexpected penetration may also be qualified as violence. ⁴⁶ Furthermore, pursuant to Article 81 DCC, inducing a state of unconsciousness may also be qualified as violence, which means that the surreptitious administration of drugs in order to commit rape can be qualified as violence.

The means ‘any other act’ was added to Article 242 DCC in 1991 and gives expression to the fact that coercion can also take place by other means than (physical) force. Under this heading, instances of psychological coercion and situations in which the perpetrator uses force falling below the threshold outlined above are generally subsumed. ⁴⁷ Examples of the latter are, for instance, firmly gripping ⁴⁸ or lying on top of the victim. ⁴⁹

Psychological coercion, on the other hand, may arise from certain underlying situations, which the perpetrator creates and/or exploits. A doctor ordering a patient to bend over has for instance been qualified as (psychological) coercion by means of other acts. ⁵⁰ Moreover, exploiting positions of authority, physical or psychological superiority ⁵¹ over others or coercion flowing from hierarchical or dependency relationships ⁵² may also be subsumed here. The age difference between the victim and the perpetrator may play a role when assessing whether the victim was coerced by other acts.

However, age difference, dependency or an asymmetrical power relationship alone will be insufficient to conclude that the victim was coerced into sexual intercourse. ⁵³ Instead, it needs to be established that the concrete conduct of the perpetrator created a threatening atmosphere in the relationship between victim and perpetrator, which coerced the victim into sexual intercourse. ⁵⁴ In a pertinent case, appealing to the god-fearing nature of the victim, in combination with the existing age difference and psychological superiority of the defendant, led to a finding of coercion by any other act. ⁵⁵ In other situations, locking the door of a room or a car in which the victim and perpetrator are present has been qualified as coercion by any other act. ⁵⁶ Finally, sexual penetration taking place unexpectedly or by surprise has also been classified as coercion by other acts. ⁵⁷ Overall, the category of coercion by other acts is highly casuistic, and much will depend on the exact circumstances of the case at hand. ⁵⁸

Just like the concept ‘any other act’, the coercive means threat (of force) is also interpreted broadly in Dutch criminal law. Coercion by threat (of force) will, for instance, be assumed in cases where the perpetrator created such a threatening situation that the victim's fear (of force) was justified. ⁵⁹ In this context, courts seem to apply a casuistic, subjective approach, as threats that would objectively not be considered to exert a sufficient impact, but in the case at hand nevertheless did, will count as threat. In a pertinent case, the utterances of a voodoo doctor that evil spirits would bring ailments to the victim and others unless she had sex with him were, for instance, qualified as coercion. ⁶⁰

C. Mens rea

Regarding the applicable mens rea, intention in the form of dolus eventualis is at least required. The perpetrators’ intention must cover the fact that the sexual activity took place against the will of the victim ⁶¹ and that the sex act was, due to coercion, unavoidable for the victim. ⁶² To establish dolus eventualis the defendant must at least have been aware of and accepted the considerable risk that the sexual penetration took place against the will of, and was unavoidable for, the victim. ⁶³ This may also be the case when the defendant intentionally creates an intimidating or threatening situation from which the victim cannot escape and wherein the sexual intercourse took place.

If the perpetrator uses force, establishing intent will generally not be problematic. However, difficulties may arise in situations where violence is part of the sexual interaction and in more ambiguous situations. In a pertinent case, the defendant was due to a domestic violence prevention order not allowed in the house but had nevertheless hidden in a room and waited until the victim went to bed. He woke the victim, hid her phone and behaved erratically. The victim felt threatened by the situation but eventually managed to calm him down and out of fear, and to avoid further escalation of the situation, proceeded to have (oral) sex with the defendant (which, according to the defence, she allegedly initiated), during which he also held down the victim's wrists. In this situation of mere apparent consent, the defendant had been acquitted in first instance, ⁶⁴ but found guilty on appeal, ⁶⁵ and the Supreme Court upheld the conviction. It held that considering the overall situation and underlying history, the defendant could and should have been aware that the sexual activity occurred without consent and therefore had accepted the considerable risk that the sexual intercourse took place against the will of the victim. ⁶⁶ Similarly, in a case involving BDSM practices, the court argued that considering the victim's limited experience with such practices, her reaction (weeping) and the fact that drugs had been consumed, the defendants could not assume that the victim had consented to all sexual and violent activities. As it had not in advance been discussed between the parties what conduct they would engage in, the defendants had a duty to ascertain and verify the continuous consent of the victim. ⁶⁷

The foregoing overview reveals that the term ‘coercion’ is currently interpreted broadly in the Netherlands. The Dutch system can therefore be qualified as a broad coercion-based system. The broad judicial interpretation of coercive means allows courts to analyse the broader circumstances, such as asymmetric power and abusive relationships, under which the sexual activity took place, and therefore creates room to more fully engage with the continuum of coercion under which rape may take place. The above analysis also shows that although the central feature of Dutch law currently is coercion, considerations of (non-)consent nevertheless can play an important role in establishing rape liability. ⁶⁸

D. Challenges and shortcomings of the current system

According to the Dutch legislator, the current approach to rape is no longer ‘fit for purpose’, as it creates a mismatch between societal perceptions regarding what constitutes sexual misconduct and what can be qualified as such by law. ⁶⁹ Social movements, such as the #MeToo-campaign, have not only created increased awareness of the prevalence of sexual misconduct in modern society and its impact on victims but have also brought about a change in and strengthened social norms regarding how people ought to behave when initiating sexual interactions. ⁷⁰ From a legal perspective, these developments highlighted especially the crucial role of sexual autonomy and the right to be protected against involuntary and non-consensual sexual behaviour. ⁷¹

The current model falls short of fully protecting sexual autonomy as it puts the bar for conviction too high by requiring proof of coercion, which may not always be present, despite the fact that consent is clearly missing in the case at hand, so the argument runs. ⁷² For one, opportunistic (ab)use of a situation without the use of force or the creation of a threatening situation to engage in sexual activity may in itself not always suffice to reach the necessary threshold for coercion. ⁷³

Moreover, the requirement that the applied coercive means made the sexual conduct (essentially) unavoidable and that the perpetrators’ mens rea (in the form of dolus eventualis) must have covered this aspect, as well as that the sexual conduct took place against the will, does not provide sufficient protection to victims. ⁷⁴ This is especially problematic in situations of frozen fright, also known as tonic immobility, where the victim cannot resist. ⁷⁵

Another shortcoming of the current model relates to the fact that the victim must have been aware of the sexual conduct for liability to arise. This is because the law requires that the victim, through the application of certain means, is coerced to undergo sexual activities, which implies awareness of these (unwanted) activities. ⁷⁶ Accordingly, sexual penetration taking place during sleep or unconsciousness ⁷⁷ cannot give rise to liability for rape but may be subsumed under the lesser offence of Article 243 DCC (sexual intercourse with a person in a state of unconsciousness or reduced consciousness). ⁷⁸

Moreover, the requirement of coercion is difficult to reconcile with situations where sexual intercourse was the result of deceit. ⁷⁹ Sending falsified medical documents to women with a view to make them undergo fake medical procedures (consisting of sexual activities) was for example not considered coercion. ⁸⁰ Likewise, having sex with the dozing victim, pretending to be her boyfriend, was also considered to not constitute coercion. ⁸¹ Thus sex by deceit currently falls outside the scope of Dutch rape law. ⁸²

From the foregoing, it can be deduced that the new law aims, amongst other things, ⁸³ to capture conduct that currently falls outside the scope of criminal law by expanding criminal liability to instances of non-consensual sexual activities and lowering the burden on the prosecution. ⁸⁴ Thus the new law aims to increase the scope of protection for victims by broadening the scope of liability. In addition, it seeks to fulfil a symbolic function and to increase foreseeability by creating clear and accessible norms, which clearly outline which conduct is considered (socially) permissible and which not. ⁸⁵ To buttress the symbolic function of the new law, the reform will be accompanied by educational efforts to outline when sexual conduct is criminally reprehensible. ⁸⁶ Through clear and foreseeable norms, the reform furthermore aims to exert a deterrent effect on potential perpetrators and to bring about changes in behaviours and attitudes. ⁸⁷ It remains to be seen if these lofty goals can indeed be achieved.

5. The Dutch proposal – criminalizing sex against the will

Due to the aforementioned shortcomings, the current proposal seeks to fundamentally reform all sexual offences through the introduction of a consent-based model. With regard to the offence of rape, two new offences will be implemented which focus on the concept of (non-)consent, enshrined in the requirement that sexual activity took place against the will. The new Article 242 DCC would introduce a negligence-based form of rape, which foresees a maximum punishment of four years if the perpetrator had serious reason to suspect that the sexual conduct was non-consensual. ⁸⁸ In comparison to the current law, a considerable expansion of the scope of liability would be brought about by the introduction of a negligence variant of rape. Accordingly, as further discussed below, gross forms of inadvertence and carelessness regarding the existence of consent would then lead to criminal liability. Article 243(1) DCC in turn criminalizes intentional non-consensual sexual intercourse and foresees a maximum penalty of nine years. Paragraph 2 of this article contains an aggravated form of intentional rape where the perpetrator uses coercion, force or threat, in which case a maximum penalty of 12 years may be imposed. ⁸⁹

While the shift to a consent-based model is to be welcomed from a principled perspective, as the following discussion attempts to show, a consent model also raises complex questions and several elements of the current proposal should be further fleshed out to achieve the aforementioned goals of the reform.

6. The complexities of consent

A consent model requires careful consideration, conceptualization and definition of the notion of consent and its underlying foundation. Consent is not a uniform concept that is easily accessible through common sense or ordinary language. ⁹⁰ Thus penal systems must first decide which concept of consent makes sex permissible. Thereby, legislators need to be mindful of the conceptual and underlying foundational normative choices and base reforms on clear and systematic considerations to avoid inconsistent and patchy offence definitions. ⁹¹

Furthermore, when reforming sexual offences, due regard must also be had to overarching principles on which a criminal justice system is built. For instance, the interpretation of core concepts of criminal law, such as the principle of ultima ratio and the principle of legality, will shape the form and scope of law reform. ⁹² The former principle makes, for instance, clear, that criminal law ought to be used as a last resort. As a result, consent in criminal law functions as a threshold concept, meaning that consent-negating circumstances ought to be of sufficient weight to justify criminal punishment and censure. ⁹³ The principle of legality, on the other hand, requires, amongst others, that criminal norms are drafted as clearly and precisely as possible so that citizens can determine in advance which conduct will give rise to criminal liability and which will not. ⁹⁴ Consequently, drafters need to make conscious choices about foundational matters underpinning consent and accordingly adapt concepts to the broader framework of criminal law in which the offence will operate. ⁹⁵

The following sections discuss certain key features of the concept of consent and potential difficulties when applying it in practice. In this way, the Dutch proposal is juxtaposed with the English consent model of rape. This will highlight potential obstacles in the current proposal and, at the same time, provide insight into the complex conceptual and normative architecture of consent in general.

A. Sexual autonomy as the theoretical foundation of rape law

As already mentioned above, the role of consent in rape law is generally connected to sexual autonomy. According to the prevalent view, consent functions as the vehicle through which sexual autonomy is protected. ⁹⁶ However, the concept of autonomy, just like consent, is contested and views differ as to what constitute necessary and sufficient conditions for autonomy. ⁹⁷ Traditional conceptions of autonomy often emphasize individual rights and focus on rational processes of reflection and choice. ⁹⁸ Conversely, other approaches, such as relational conceptions of autonomy, emphasize the ways that individuals are embedded in social relationships. ⁹⁹ Proponents of this view see obtaining consent as a relational matter, with the result that the initiator of sexual activities incurs a responsibility to take reasonable steps to ensure that the partner's exercise of autonomy is ensured and not impeded (e.g., through ensuring sufficient time, information and freedom from pressure to provide consent). ¹⁰⁰

Different underlying notions of autonomy thus shape the concept of consent as well as the corresponding understanding of the wrong of rape and, furthermore, co-determine the scope of liability. A stern focus on choice and violations of the victim's will seems, for instance, to understate and insufficiently capture the physical wrong of rape. ¹⁰¹ In addition, different conceptions of autonomy may produce different results in situations where deception, ¹⁰² coercion, ¹⁰³ manipulation, etc. is used to obtain consent. Without a clear understanding of the underlying premises and functioning of consent, uncertainties in the application of the law are bound to persist, impeding the promotion of basic norms of permissible sexual conduct.

B. The nature of consent

Another fundamental question that needs to be addressed at the outset relates to the exact nature of consent. Is consent best perceived as a psychological act, an inner mental state, or, alternatively, a behavioural, expressive act? ¹⁰⁴ In the former view, consent is perceived as a subjective mental state (which may or may not be communicated). ¹⁰⁵ This seems to be the approach adopted by the English and Canadian criminal justice system. ¹⁰⁶ Such a conception places the emphasis of any legal evaluation on the individual's inner thought process and desires and looks at consent from the perspective of the potential victim.

By contrast, a behavioural act conception looks at consent from the perspective of the alleged perpetrator. ¹⁰⁷ Here, consent is a behavioural expressive act, which may or may not reflect the individual's mental attitude. ¹⁰⁸ According to this view, the primary harm of rape lies not so much in the violation of individual rights but rather in the perpetrators’ moral and political transgression by not sufficiently respecting the victims’ expressed or implied feelings about the sexual activity. ¹⁰⁹ Proponents of this view frequently require that consent be expressed in order to be efficacious, and therefore the central question becomes what kind of tokens signal (non-)consent.

To minimize evidentiary difficulties, requiring communication instead of a stern focus on hard to determine inner, unspoken attitudes seems a salient choice. ¹¹⁰ Furthermore, a psychological conception can make it difficult for the initiating partner to decipher whether the sexual conduct in question is consensual. Finally, a pure mental conception of consent may even invite scrutiny of the victims’ actions and sexual history during trial, as determining the internal concept of consent requires insight into the victim's attitude towards sex. ¹¹¹

As will be further discussed below, the Dutch proposal seems to adopt a behavioural act conception, as consent will generally need to be communicated. However, the exact form of communication required remains unclear.

C. Defining consent

Once the nature of consent has been clarified, the concept subsequently needs to be further defined. Yet courts, scholars and legislators alike have long struggled to define consent in positive terms. In English law, section 74 of the Sexual Offences Act 2003 (SOA 2003) holds that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’. This definition is further concretized by sections 75 and 76 SOA 2003, which contain rebuttable and conclusive presumptions.

A rebuttable presumption of non-consent pursuant to section 75 SOA 2003 exists, for instance, in circumstances where the defendant used violence or threatened violence against the victim or another person, where the victim was asleep or unconscious at the time of the act, or where, succinctly put, the defendant drugged the victim. If the prosecution proves one or more of the circumstances outlined in section 75 SOA 2003, non-consent as well as the defendant's knowledge thereof will be assumed. However, the defence may produce evidence to rebut this assumption. According to section 76 SOA 2003, a conclusive presumption of non-consent and absence of a reasonable belief to this matter exist where the perpetrator intentionally deceived the victim as to the nature or purpose of the relevant act or the identity of the partner.

The new Dutch law will not contain a definition of consent but instead introduces the requirement that the sexual activities took place against the victim's will. Sexual conduct will be considered to take place against the will in case of clear verbal or non-verbal signals of unwillingness, i.e., non-consent. ¹¹² Moreover, according to the parliamentary materials, conduct may also be against the will in case the victim remains passive and non-consent cannot be deduced from the victim's conduct. ¹¹³

The guidance provided on the crucial issue of ‘against the will’ regrettably remains vague and, as further discussed below, even points in different directions as to how consent ought to be communicated. ¹¹⁴ Regarding communication, a (conceptual) difference exists between so-called ‘No means No’ models of rape and affirmative consent, often referred to as ‘Yes means Yes’ models.

According to the former, sexual intercourse will be considered rape whenever the victim has, either verbally or through his/her demeanour, expressed non-consent. Thus, in a ‘No means No’ model, the law imposes an obligation on the victim to communicate its wishes, i.e., rejection, and the offender incurs a corresponding duty to respect expressions of non-consent. ¹¹⁵ This is the approach adopted by German law for most instances of rape ¹¹⁶ and the reference to clear verbal or non-verbal signals in the Dutch explanatory memorandum seems to point in this direction as well.

Conversely, an affirmative consent model presumes that sexual conduct is non-consensual unless consent has been affirmatively communicated. ¹¹⁷ Views on how consent can be affirmatively communicated may, however, differ and can range from narrow conceptions (a verbal yes or even a contract) to any behavioural clue that signals internal agreement (passionate kissing, foreplay). Canada ¹¹⁸ and Spain ¹¹⁹ have, for instance, adopted a ‘Yes means Yes’ model and require such affirmative consent. Likewise, the fact that the Dutch legislator also includes passivity (i.e., ‘the absence of a manifestly responsive attitude’) ¹²⁰ as an instance of against the will seems to embrace such an approach, creating uncertainty regarding the exact contours of consent.

This is problematic as both models result in different scopes of liability as well as different spheres of protection for victims and offenders. A ‘Yes means Yes’ model, prima facie, creates a broader scope of liability, as it criminalizes sex in situations of passivity and where the perpetrator advances without checking the wishes of the partner where neither assent nor rejection has been signalled. ¹²¹ Thus this introduces a rebuttable assumption of non-consent, which may lead to liability in ambiguous situations.

A ‘No means No’ standard, on the other hand, creates a general rule that aims to protect people from unwanted sexual activity to which they unequivocally object. Still, while this may seem to create clear boundaries, this standard may be under-inclusive in situations where the victim fails to say no due to a lack of capacity (sleep or intoxication) or frozen fright or fear. ¹²²

Anyhow, the foregoing shows that the exact way in which consent or absence of will ought to be communicated remains unclear in the Dutch proposal as the explanatory memoranda contains contradicting standards. This creates uncertainty regarding the scope of liability and may give rise to an overly broad concept of rape, resulting in unnecessary overlap with other sexual offences. ¹²³

D. Validity of consent

Regardless of the adopted consent model and its corresponding definition, a related but nevertheless distinct question is when the consent provided in a certain situation was prescriptively valid. ¹²⁴ This entails a normative enquiry into which conditions need to be present for consent to be legally valid. Consent may be considered valid when provided voluntarily, knowingly and completely. ¹²⁵ Thus it must be the product of sufficient capacity to deliberate, requires a sufficient understanding of the basic facts and circumstances surrounding the act and the provision of consent, and ought to be free from deception, force or coercion. ¹²⁶ The foregoing is enshrined in the English definition of consent, which requires an agreement by choice based on (sufficient) freedom and capacity to make that choice. ¹²⁷

As mentioned above, the Dutch proposal focuses on the question whether the sexual conduct took place against the will of the victim. Absence of will can be assumed in case of use of force, threat, coercion or clear verbal or non-verbal signals, and when the victim responds to sexual advances with passivity, turns away or freezes. ¹²⁸ Furthermore, mental or physical incapacity (e.g., through alcohol and drugs), acting by surprise or cases of sexual conduct between unequal partners (e.g., based on hierarchical or trust based relationships) may lead to the finding of absence of will. ¹²⁹

Thus the Dutch and the English system provide some guidance as to when consent will be valid, yet the guidance provided remains rudimentary and the required degree of freedom, capacity or choice remains unclear. A wide range of factors may influence the validity of consent, and determining the lower threshold of validity may give rise to difficult questions. Clearer legislative guidance would arguably be desirable, as leaving everything to judicial discretion may give rise to an unequal application of the law.

The issue of the validity of consent raises difficult questions with regard to the capacities required for providing consent, which become particularly acute in the context of voluntary intoxication. Thereby, complex questions may arise as to when the capacity to consent will become impaired. The key question here is whether a drunken consent is still valid consent and, if not, when this becomes the case. Particularly difficult are cases where the victim, as a result of intoxication during the sexual encounter, cannot recall what exactly happened or what her state of mind was at the time.

In extreme cases of intoxication resulting in unconsciousness, a lack of capacity to consent seems uncontroversial, but the exact threshold nevertheless remains elusive. ¹³⁰ In English law, a failure to acknowledge the varying levels of intoxication and their impact on consent respectively capacity has led to some uncertainty regarding the issue of intoxicated consent. ¹³¹ Some cases have set the bar for invalid intoxicated consent rather high, ¹³² which has led some to argue that drunken consent should not be valid consent unless consent to sex was given before getting drunk. ¹³³ However, such a broad definition of invalid consent could arguably create considerable overreach. ¹³⁴

According to the Dutch legislator, consent will be absent in case of unconsciousness or reduced consciousness. This acknowledges that capacity to consent may be lost before unconsciousness. The explanatory materials mention dozing preceding deep sleep or intoxication as states of reduced consciousness. ¹³⁵ The reduced consciousness must lead to a situation in which it cannot be expected from the victim to resist the sexual desire of the perpetrator. Some further guidance could arguably here be deduced from case law based on the current Article 243 DCC (sexual intercourse with a person in a state of unconsciousness or reduced consciousness). Accordingly, where the victim is intoxicated to the point of vomiting, disoriented, unstable and slurring her words, this may, for instance, indicate a lack of capacity to consent. ¹³⁶ In this context, the victim's age and tolerance for the consumed substance may play a role. ¹³⁷ While the exact contours of capacity remain unclear and need to be assessed on a case-by-case basis, this provides at least some guidance for judges. While more guidance would certainly be desirable and increase foreseeability, the Dutch approach seems an improvement in comparison to English law, discussed above.

Moreover, difficult cases may arise in situations where consent was obtained by coercion. Uncontroversial are cases where consent was obtained by compulsion, such as (threat of) violence, but aside from such cases, matters soon become murkier. When and which forms of coercion ought to undermine consent? The difficult task thereby is to decide what ‘evils’ or alternatives presented to A by B will make the following sex non-consensual. This entails a normative value judgement regarding alternatives and choice, on which opinions may diverge. Will threatening A with non-violent harm undermine consent? If so, which forms of harm will negate consent? Will threatening trivial harms already suffice? What level of pressure will negate consent depends on a variety of factors that can arguably only be addressed on a case-by-case basis. Hence, despite growing social consensus that consent obtained by certain forms of coercion (such as an employer promising a promotion in exchange for sexual intercourse) is morally and socially unacceptable, the position of the law remains unclear, as a clear line between coercive sex that should be criminalized and that should not is currently missing. ¹³⁸ This brings to light a potential conflict between law and morality.

Linked to the foregoing issue of consent obtained by coercion are questions related to the required degree of voluntariness for consent. This relates to a model’s ability to take account of the broader circumstances under which choices are made. Depending on the circumstances in which the sexual activity takes place, consent may only be apparent. Underlying abusive, unequal or hierarchical relationships and abuse of positions of authority are generally accepted under Dutch ¹³⁹ and English ¹⁴⁰ law to vitiate consent in certain situations. However, other factors, such as severe poverty or the broader social context and normative cultural scripts, may also produce tokens of consent that are merely apparent. ¹⁴¹

Dutch courts may deduce some guidance on the aforementioned situations from the former coercion approach, ¹⁴² but this may not cover all scenarios. Thus, without clear legislative guidance, courts may struggle to effectively demarcate blameworthy from non-blameworthy behaviour, considering the varied continuum of coercion in which rape may take place.

E. Rape by deception

As alluded to above, consent requires sufficient knowledge about the basic facts and circumstances surrounding the sexual activity. This may lead to complex questions in case consent is achieved under false pretences, as it can be argued that deceit, just like force, will undermine consent. ¹⁴³ Thus legal systems will have to decide which information is essential and which is not to make a meaningful and well-informed decision with regard to engaging in consensual sex. The difficulty thereby is that there is a broad spectrum of misinformation, misrepresentations and false pretences, which could potentially negate consent. Deciding what forms of sex induced by deceit are (sufficiently) blameworthy to warrant the stigma and penalties carried by the offence of rape is again, at least partially, a normative question. Situations in which the victim was kept in the dark as to the nature of the act seem uncontroversial. Thus consent is absent when V does not realize that she is engaging in sexual intercourse but instead is, for example, led to believe that she is undergoing a medical exam. ¹⁴⁴ Similarly, the law has often treated some situations of mistaken identity, such as when A tricks B into believing they are having intercourse with another partner than is actually the case, as vitiating consent.

Section 76 of the English SOA 2003 addresses both issues through the establishment of a non-rebuttable presumption of non-consent in cases where the defendant (i) intentionally deceives the complainant as to the nature or purpose of the relevant act, or (ii) induces consent by impersonating someone known personally to the complainant. However, the scope and applicability of section 76 is limited due to its focus on intentional deception as to the nature of the act and the requirement that the deception induced (i.e., caused) consent on the one hand. Furthermore, the section is also construed narrowly, as it will not apply if the victim is ‘merely’ deceived as to the concrete situation in which she found herself but understood that she was engaging in sexual intercourse for sexual gratification. ¹⁴⁵ However, this does not mean that such deceptions may not negate general consent pursuant to s 74 SOA 2003. ¹⁴⁶ According to English law, deceit relating to the crucial features on which consent is based may vitiate consent. ¹⁴⁷

Questions may in this context, for instance, arise as to whether misrepresentations regarding sexually transmitted diseases carried by the partner count as deception and vitiate consent. According to the decisions in R v. Dica ¹⁴⁸ and Konzani, ¹⁴⁹ failure to disclose a venereal disease does not negate consent to intercourse under the SOA 2003. ¹⁵⁰ This may, however, be different in case of active deception, i.e., where A asks B whether (s)he is free of disease and B lies. ¹⁵¹

In addition, questions may also arise about whether valid consent depends on the use of contraceptives such as a condom or withdrawing before ejaculation. If that is the case, what if the partner, during intercourse, removes the condom (a practice known as stealthing) or otherwise intentionally disregards a central condition for consent? Under English law, both situations have been found to negate consent as they were considered crucial features on which consent was based and therefore deprived the victim of the possibility to make an informed choice. ¹⁵² On the other hand, a deception about having had a vasectomy was not capable of vitiating consent. ¹⁵³ Similarly, it may be asked if information as to gender can be considered crucial for valid consent. Such cases are more far-reaching and controversial as they raise questions regarding equal treatment, dignity and protection of privacy of transgender and gender non-conforming people. ¹⁵⁴ Nevertheless, cases of sexual or gender fraud, i.e., regarding deception as to gender, have also been found to negate consent under English law. ¹⁵⁵

As discussed above, sex by deception falls at the moment outside the scope of the Dutch coercion model. In a recent decision, the issue of stealthing was for the first time addressed in court. The defendant had removed his condom during intercourse despite previously explicitly agreeing to use one. The court held that this could not be considered coerced sexual penetration pursuant to Article 242 DCC and acquitted the defendant of rape. However, it found the defendant guilty of forcing the victim to undergo unprotected sex, pursuant to Article 284 DCC, an offence against personal liberty. ¹⁵⁶ The situation will, however, change with the introduction of the new consent-based model, where, under certain circumstances, deception may negate consent. ¹⁵⁷ For this to be the case, the deception must be of sufficient weight and must directly relate to the protected legal interest of rape, i.e., the sexual integrity and autonomy of the victim. Such a link will, for instance, be assumed in case the deception relates to the nature of the act or identity of the partner. The deception must relate to the central aspects of the sexual contact and not merely pertain to ancillary conditions or surrounding conditions, presumably excluding lies pertaining to marital status, wealth, fame, etc. ¹⁵⁸ The legislator has made it clear that it intends to criminalize stealthing under the new law, under which also intentionally damaging a condom will be subsumed. Deception about the use of anti-conception pills or the morning after pill will, however, remain outside the scope of the law. ¹⁵⁹

In any case, the foregoing shows that the spectrum of potentially consent-negating forms of deceit is broad and different approaches are defendable. ¹⁶⁰ Therefore, further legislative guidance would have been welcome to avoid confusion and ambiguity and enhance foreseeability and legal certainty. Listing central knowledge elements such as risk of venereal diseases and pregnancy about which being misled will vitiate consent could constitute a step in the right direction. Furthermore, a pragmatic solution may also be found in the creation of a separate offence of procuring sex under false pretences. This raises a broader question of whether the offence of rape is best structured around one undifferentiated definition, or if the law ought to distinguish between different gradations or degrees of rape. ¹⁶¹ For instance, a recent English proposal recommended the creation of a new offence, i.e., inducing a person to engage in sexual activity by deception, which would include an exception of ‘reasonable excuse’ to avoid over-criminalization. ¹⁶² Such a differentiated approach could reduce the pressure on the conceptualization and definition of consent, but requires careful consideration to accurately define and capture the wrong involved in deceptive sex. Moreover, opponents challenge the assumption that more and less serious forms of rape can be distinguished ¹⁶³ and argue that a differentiated approach would create a two-tire protection for victims. ¹⁶⁴

F. Consent, culpability and the fault element of rape

Making consent the central element of rape finally raises the question which particular form of mens rea, regarding the element of non-consent, the law ought to require. The applicable mens rea standard for rape ought to be flexible enough to criminalize a broad spectrum of unwanted sex while avoiding the over-criminalization of wanted sex, thereby unduly circumscribing positive sexual autonomy. ¹⁶⁵ This, however, requires addressing highly contested normative and empirical questions, such as how consent is practised in different segments of society.

Traditionally, many jurisdictions required intention for the offence of rape. Yet, even if this includes dolus eventualis, as is the case in many civil law systems, a person will only be liable if it can be proven that the defendant was aware of the considerable risk that the partner was not consenting and accepted this risk. Thus, if the defendant acted under a mistaken belief regarding the existence of consent, no liability can arise. Furthermore, proof of intention can be problematic as, amongst others, in sexual encounters often, subtle (non-)verbal signals will play a role, the interpretation of which will depend on the situation at hand and the persons involved.

As a result, some jurisdictions have adopted a broader approach and adhere to a negligence standard, requiring proof that the defendant should have been aware of the (significant) risk that the partner did not consent and/or, depending on the system, should not have trusted that there was consent. ¹⁶⁶ Accordingly, if the defendant unreasonably assumes that sex was consensual, he acts wrongfully, i.e., grossly carelessly, for which he will be blamed. The problem is, however, that society's views as to what is reasonable in sexual interactions may differ, while the law ought to create clear and foreseeable rules. ¹⁶⁷

Therefore, one question that systems need to address is how a negligence standard can be adjusted to the context of rape. To avoid frictions with the principle of legality, the required standard of diligence ought to be clear. Adopting a purely objective approach (would a reasonable person have detected the absence of consent?) may negatively affect those with limited capacities and lead to a shift in the burden of proof, thereby mimicking strict liability and causing frictions with the principle of guilt and the presumption of innocence. ¹⁶⁸ On the other hand, too much subjectivity may lead to overly broad mistake of fact defences, circumscribing the law's scope of protection. Therefore, the law generally uses a mixed benchmark, combining the objective reasonable person standard with the subjective standard of the perpetrator. Accordingly, individual circumstances, capacities, etc. are taken into account when establishing liability. Thereby, age, general sexual experience, sexual experience with the victim and any other factor that may affect the capability to recognize the risk of non-consent (e.g., a learning disability, arrested development, personality disorder, etc.) could be relevant. To avoid over-criminalization, careful consideration and evaluation on a case-by-case basis will be necessary.

Although worded differently, both the Dutch proposal ¹⁶⁹ as well as the English SOA 2003 adopt a negligence standard. As mentioned above, the new Article 242 DCC imposes liability for sexual activities when the defendant had serious reasons to suspect that this was non-consensual, and s. 1(1) SOA 2003 requires that A did not have a reasonable belief that B was consenting. Whether a belief is reasonable is to be determined in English law having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. ¹⁷⁰ In this negligent standard, personal characteristics and beliefs remain important, but the belief in consent and the manner by which it was achieved are to be assessed by objective criteria. ¹⁷¹ This covers purpose, awareness and absence of belief regarding whether consent is present, as well as any unreasonable belief in consent. ¹⁷²

The different approaches of Dutch and English law show different legislative choices regarding the issue raised above, namely whether a differentiated or undifferentiated definition of rape is preferable and defendable. The creation of a lesser offence of negligent rape, while not unique to Dutch law, creates a hierarchy between offences and raises questions about whether grossly careless violations of sexual autonomy are best qualified as lesser forms of rape.

In any case, according to the Dutch legislator, a defendant will be liable for negligent rape pursuant to Article 242 DCC when it can be established that every right-minded person, on the basis of evident outward indications, would have assumed, considering the concrete circumstances, that there was a realistic chance that consent was absent. ¹⁷³ Thereby, the location of the sexual activity, the company in which it took place, the nature of the sexual activity, and the relationship between the parties may play a role. ¹⁷⁴ Moreover, evidently (non-)verbal reluctant demeanour and an unequal starting point of the sexual encounter are named as contra-indications for consent in the explanatory materials. ¹⁷⁵

To prevent over-criminalization, the legislator opted for a higher standard of negligence for rape than is the case for other offences, which finds expression in the requirement ‘serious reasons to suspect’ non-consent. Only in situations where the defendant was aware of clear signals of non-consent will a duty to investigate arise. ¹⁷⁶ Should the defendant breach this duty and fail to verify consent in case of clear counter indications, he will be liable for negligent rape. What exact standard of diligence this duty requires remains, however, not fully clear. Furthermore, this arguably creates a high bar for negligent rape liability.

Requiring such a higher standard of negligence circumscribes the scope of liability and stops short of imposing a general duty to investigate on the defendant. ¹⁷⁷ More ambivalent situations where clear signs of non-consent are absent, such as where the victim during the sexual encounter takes a less active position, will fall outside the scope of liability, as these may prima facie not amount to serious reasons to suspect non-consent. ¹⁷⁸ If the goal is to provide a broader scope of protection to victims of rape, then requiring a higher degree of negligence may defeat this purpose.

Moreover, this higher standard of negligence casts doubt on the added value of the negligent variant when compared to situations of dolus eventualis. If the signals of non-consent were evident, as mentioned in the explanatory report, a continuation of the sexual activity may already lead to a finding of dolus eventualis, as the defendant was clearly aware of the risk of non-consent and, by continuing regardless, has also accepted it. ¹⁷⁹ As a result, courts may find it difficult to draw a line between intentional and negligent rape. This is supported by evaluation reports from Sweden, where it was found that the introduction of a separate offence of negligent rape made the assessment of mens rea more difficult. ¹⁸⁰ This may lead to inconsistencies and even arbitrariness in establishing (gross) negligence, which is problematic with regard to the principle of legality and the requirement of legal certainty. ¹⁸¹ One difficulty here lies in the lack of technical evidence and independent witnesses, which frequently characterizes rape cases. As a result and because of contrasting accounts of the night in question, the assessment of negligence can become closely intertwined with an assessment of credibility, which may in turn allow stereotypes about gender and sexuality to influence the assessment. ¹⁸²

The foregoing shows the difficulty of determining the fault element and appropriate standard of care in sexual encounters, as well as its potentially intricate application in practice. To balance the different competing interests, the underlying duty of care ought to be clearly formulated and clear assessment criteria established in order to increase foreseeability and legal certainty so that the law can exert its guiding and norm confirming function. In any case, while a negligence standard for rape may certainly ease the burden on the prosecution in certain situations, one can, on a more fundamental level, wonder whether, considering the persistence of gender stereotypes and rape myths in society, ¹⁸³ it will de facto help to decrease the incidence of rape, as envisaged by the legislator. ¹⁸⁴

7. Conclusion

The Dutch proposal to change from a coercion-based system of rape to a consent-based system is certainly a welcome development from a principled perspective. It will more clearly and directly protect sexual autonomy and will close some of the gaps that exist under the current law. In addition, it will bring Dutch law back in line with obligations flowing from International and European law. The foregoing analysis has, however, shown that consent as a constituent element of criminal liability for rape comes with its own inherent shortcomings. Consent has proven difficult to define, and the protection offered to the sexual autonomy of victims hinges partially also on an assessment of the broader circumstances under which sexual choices take place. Thus, while a consent-based model may remedy some shortcomings of a coercion-based system, such a shift may also create new uncertainties and problems. Clarification of central facets of consent, such as the necessary capacities and knowledge for consent as well as the control (or choice) required for consent, seems vital in this context.

Otherwise, a thin or skeletal conceptualization of consent may struggle amongst other things with cases of intoxication and deception. In addition, it may fail to take sufficient account of structural and systemic pressures influencing consent. To further flesh out the contours of the new consent model, Dutch courts could draw inspiration from their former coercion case law. The current proposal seems to provide room for this, and enriching a consent-based model with elements of a coercion-based analysis will augment the new model by allowing the broader circumstances under which consent is made to be taken into account. ¹⁸⁵

Still, while some elements may be clarified in due time by the courts, the central concept of consent remains in need of further clarification by theorists, reformers and legislators to ensure legal certainty and an equal application of the law. With regard to sexual offences, foreseeability and clarity are key to ensuring that the limits of criminal liability and what constitutes acceptable or unacceptable behaviour are clearly laid out and understood in society.