What is the difference between indecent assault and rape?<\/h2>\n\n
The sexual offense of indecent assault can occur in many forms. Briefly put, it involves the unwanted sexual touching of the victim. Unwanted touching of sexual body parts such as breasts, buttocks, and genitals constitutes indecent assault. This can occur with touching both over and under clothing; it is therefore not required that the bare body be touched. Furthermore, touching other body parts can constitute indecent assault if they acquire a sexual connotation in context. One might think of unwanted touching of the upper leg by a driving instructor. <\/p>\n\n
The difference between indecent assault and rape is that rape involves the sexual penetration of the body. The manner in which and the object with which the body is penetrated is irrelevant for criminal liability. Any form of penetration can constitute rape. Under certain circumstances, rape also occurs if the suspect makes the victim penetrate themselves or another person. <\/p>\n\n
It is worth noting that a French kiss is excluded from the definition of rape. In that case, it is referred to as indecent assault. <\/p>\n\n
When is performing sexual acts with a minor punishable?<\/h2>\n\n
Sexual acts with a minor are punishable if that minor is under 16 years of age. The law assumes that young people are sexually independent and responsible from the age of 16. However, there are also situations in which sexual acts with a 16- or 17-year-old are indeed punishable. There are three specific situations where this may apply: <\/p>\n\n
- \n
- The first situation concerns behavior with one’s own child or a child with whom a special relationship exists. This includes foster parents, sports coaches, or teachers. <\/li>\n\n\n\n
- The second situation concerns a minor in a particularly vulnerable position, for example, due to a mental disorder, intellectual or physical disability, or a situation of dependency.<\/li>\n\n\n\n
- The third situation concerns circumstances where means of seduction are used, such as abuse of authority arising from factual relationships, promises, or gifts.<\/li>\n<\/ul>\n\n
To prevent sexual experimentation between minors from becoming punishable, the legislator has created a legal ground for exclusion of punishment. This applies to sexual acts with young people between 12 and 16 years old, provided there is a small age difference and an equivalent situation. Whether such an equivalent situation truly exists is assessed on a case-by-case basis. The court then looks at factors such as the age difference, the level of cognitive development, the stage of life, voluntariness, the nature of the relationship, and the type of sexual acts. <\/p>\n\n
For criminal liability, it is not required that the suspect knew the victim was a minor. Even a suspect who indicates they did not know the victim was only 14 because they thought he or she was 18 is therefore punishable. <\/p>\n\n
What has changed in the new legislation of July 1, 2024?<\/h2>\n\n
The legislator modernized sex offense legislation as of July 1, 2024. Before July 2024, criminal liability for rape or indecent assault required that the victim had been forced to undergo the sexual acts. That is no longer required. The victim’s will is now central. If the victim lacks the will to perform sexual acts, it constitutes punishable behavior on the part of the suspect if they perform these sexual acts anyway. If coercion is involved, it is now referred to as qualified indecent assault or rape. This is the most serious variant of indecent assault and rape. <\/p>\n\n
Furthermore, offenses such as ‘culpable indecent assault’ and ‘culpable rape’ can now be identified. The suspect is punishable if they wrongly assumed the other person wanted sexual contact, while there were clearly observable signals from which the suspect should have inferred that this was not the case. <\/p>\n\n
On many points of the changed legislation, no case law can yet be found, making one dependent on the legislator’s explanation. It is therefore of great importance that a lawyer is well-versed in the extensive legislative history so that optimal assistance can be provided to you. <\/p>\n\n
This new law does not apply retroactively. Punishable offenses allegedly committed before July 1, 2024, therefore fall under the old legislation, meaning coercion is still a requirement for criminal liability. The old maximum sentences also apply in that case. <\/p>\n\n
When is it a case of intentional indecent assault and rape?<\/h2>\n\n
Intentional indecent assault and rape occur if the suspect knows that the other person lacks the will to perform sexual acts, or if they accepted the substantial risk that this will was lacking and proceeded anyway. If the suspect denies knowing about that lack of will, it becomes more difficult for the judge to prove intentional indecent assault or rape. Therefore, the legislator has described certain assessment frameworks in which intent can still be established based on signals or situations. <\/p>\n\n
1. Behavior of the other person<\/h3>\n\n
The first situation concerns the behavior of the other person. If the other person expresses clear verbal or non-verbal signals and the suspect still performs sexual acts, the legislator argues the suspect must have known the will was lacking. Such signals might include saying ‘no’ or ‘I don’t want this,’ or behavior such as crying, screaming, and pushing away. However, passive behavior such as keeping still or freezing can also be classified as such behavior. <\/p>\n\n
2. Use of coercion<\/h3>\n\n
The second situation concerns the use of coercion, violence, or threats by the suspect to achieve sexual acts. In that case, it is also assumed the suspect knows the will is lacking but simply does not care. <\/p>\n\n
3. Incapacity to consent<\/h3>\n\n
The third situation concerns cases where the victim is in a state of unconsciousness, reduced consciousness, or physical helplessness, or if the victim has such a mental disorder, psychogeriatric condition, or intellectual disability that the victim is not (fully) able to determine or express a will regarding the sexual acts, or to resist them. In this case, the will is deemed to be lacking in any event. <\/p>\n\n
4. Sudden or unexpected acts<\/h3>\n\n
The fourth situation concerns acting unexpectedly. If the suspect unexpectedly touches intimate body parts of the victim, the lack of will is already inherent in the unexpected nature of the act. This also applies to unexpected penetration of the victim. <\/p>\n\n
5. Deception<\/h3>\n\n
The fifth situation concerns deception. Depending on the circumstances of the case, deception can be seen as a lack of will on the part of the victim. The deception must be of sufficient weight, and the false representation of facts must be directly related to the victim’s sexual integrity. The nature of the sexual act and the identity of the suspect must be considered. If it only concerns peripheral conditions or accompanying circumstances, it cannot be considered deception of sufficient weight. The legislator has given some examples that fall under deception, such as when the suspect poses as the victim’s partner or in cases of ‘stealthing’ (secretly removing or damaging a condom). <\/p>\n\n
6. Unequal relationship<\/h3>\n\n
The sixth \u2013 and final \u2013 category concerns the existence of an unequal relationship. There must be a criminally relevant inequality. This inequality then ensures that the freedom of will is influenced or restricted. One might think of a legal relationship of authority or a professional care relationship. In principle, the will to perform sexual acts is deemed to be lacking. To speak of criminally relevant inequality, the circumstances of the case must be examined based on factors. These factors include the nature and degree of functional inequality, the degree of control over the subordinate’s functioning and the possible consequences attached to it, and the extent to which and the manner in which sexual contact was achieved through psychological pressure or other influence. <\/p>\n\n
What are the penalties for sex offenses?<\/h2>\n\n
For many sex offenses, a prison sentence is generally imposed. This can range from days and weeks to months and years. The maximum penalties for indecent assault and rape vary by the age group of the victim: <\/p>\n\n
![\"Sex](\"https:\/\/www.strafrechtadvocaten.nl\/wp-content\/uploads\/straffen-zeden.png\")
<\/figure>\n\n*** In these cases, no distinction is made between guilt and intent. In the case of sexual abuse of children, the lack of the child’s will is not a requirement for criminal liability. <\/p>\n\n
The law also recognizes various aggravating circumstances that increase the sentence by a maximum of three years in prison. For example, it is aggravating if the suspect committed the act together with another person or if the suspect has made a habit of committing the offense. It is also aggravating if there was a family relationship, a position of dependency, or a particularly vulnerable position of the victim. <\/p>\n\n
Furthermore, it is possible to deny a suspect certain rights and professions upon conviction.<\/p>\n\n
What is the minimum evidence requirement?<\/h2>\n\n
In the Netherlands, we have a minimum evidence requirement in criminal law. This minimum evidence requirement means that a conviction must be based on at least two pieces of evidence. In practice, it appears that judges easily reach this minimum. However, in sex offense cases, this sometimes proves difficult. A characteristic of sex offense cases is that usually only two people are involved: the suspect and the complainant. There are no other witnesses. The minimum evidence requirement means that a conviction cannot be based on the testimony of a single witness. The complainant’s report alone is therefore insufficient to reach a conviction. Corroborating evidence is needed. The report must be sufficiently supported by other evidence. What that support entails is difficult to specify in practice. Every case is assessed on its own circumstances. <\/p>\n\n
General rules are therefore difficult to provide. Cautiously, a few examples can contribute as corroborating evidence. Think of finding certain text messages on the phone of the suspect and\/or the victim in which the sexual acts are discussed. One could also think of a witness statement about the (emotional) state of the complainant found shortly after the event, for example, if she was in shock or sad. In certain cases, an observed behavioral change can also contribute as corroborating evidence, for example, if a parent has noticed a behavioral change in his or her child following an incident. The discovery of injuries or forensic evidence such as DNA<\/a> can also contribute as corroborating evidence. <\/p>\n\n
If the minimum evidence requirement is met in a criminal case, it does not mean that this automatically leads to a conviction. The judge must also be convinced that the suspect committed the alleged offense. The lawyer plays an important role regarding that conviction. This can relate to the advice the lawyer gives to a suspect (to remain silent or to testify?) but also the tone, structure, and content of the closing argument. How reliable and credible is the suspect’s story? And how (un)reliable and (un)credible is the complainant’s story? Specialized lawyers<\/a> have extensive experience in acting in sex offense cases and generally know how judges think. Even regarding the judge’s conviction, an acquittal can therefore be achievable in certain cases. <\/p>\n\n
Why is it wise to hire a lawyer if you are suspected of a sex offense?<\/h2>\n\n
A conviction for a sex offense can have serious consequences for your social and professional life. Not only do you risk a prison sentence, but you may also experience significant social rejection and face problems obtaining a Certificate of Good Conduct (VOG)<\/a>. In addition, sex offenses require a clear, responsible, and legally correct approach. Decisions that determine the final outcome must be made as early as the preliminary phase. It is therefore of great importance that a suspect hires a lawyer specialized in sex offense legislation as soon as possible. Not every lawyer possesses this knowledge. Lawyers at Weening Criminal Defense Lawyers have extensive knowledge of the legislation and case law surrounding sex offenses. Therefore, do not hesitate if you or someone in your environment has come into contact with a sex offense, and contact us without obligation<\/a> to speak with one of our lawyers. <\/p>\n","protected":false},"parent":0,"menu_order":0,"template":"","class_list":["post-5432","expertise","type-expertise","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.strafrechtadvocaten.nl\/en\/wp-json\/wp\/v2\/expertise\/5432","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.strafrechtadvocaten.nl\/en\/wp-json\/wp\/v2\/expertise"}],"about":[{"href":"https:\/\/www.strafrechtadvocaten.nl\/en\/wp-json\/wp\/v2\/types\/expertise"}],"wp:attachment":[{"href":"https:\/\/www.strafrechtadvocaten.nl\/en\/wp-json\/wp\/v2\/media?parent=5432"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}