Recently, various cases have arisen – from ‘spiking’ committed by bar staff and the case of rape in Leuven to the prosecution of various public figures – that have once again fuelled debate within society on the subject of consent and about unacceptable and inappropriate behaviour.
Whilst in many respects, legislation and public opinion are moving forward, a significant lack of clarity and understanding still endures. In the past few years, the legislation governing sex offences in Belgium has been thoroughly updated in two stages, following the introduction of the Voyeurism Act in 2016 and the revision of sex offences legislation in June 2022.
As part of that process, Belgian legislation was also amended in the light of the #Metoo movement. Much greater attention is now being given to the concept of ‘consent’, which has been assigned a key position and a key role within the revised sexual offences legislation. Maximum sentences have been increased and new offences have also been introduced, such as voyeurism and the non-consensual dissemination of sexually explicit content. Nevertheless, it has been found in some cases that conveying and implementing these changes within society is proving difficult.
1. The concept of ‘consent’: no voice, no choice
The concept of ‘consent’ forms the backbone of Belgium’s new sexual offences legislation. This means that sexual acts are only legitimate if both parties give consent voluntarily, of their own free will and an informed way.
The law explicitly states that consent may not be assumed based on the absence of opposition or resistance on the part of the victim. In other words, the law now takes account of situations such as “rape-induced paralysis” or the “freeze response”, the phenomenon in which the victim is unable to effect or express any resistance out of fear.
What is more, consent can be withdrawn at any time, which means that a “Yes” can become a “No” at any time whatsoever, regardless of whether consent was previously given and regardless of whether sexual acts have already taken place or are taking place at that moment.
The law also provides for a variety of situations in which, by definition, consent is deemed non-existent, even if the victim says “Yes” or doesn’t explicitly say “No”.
Those situations, in which no consent can be deemed to exist, include the following: coercion, threatening behaviour, violence, deception or situations in which the victim has physical or mental disabilities.
These grounds that rule out consent already existed prior to the #MeToo movement, especially in cases of rape and to a certain extent in cases of indecent assault (nowadays referred to as offences against sexual integrity), but have since been expanded to include all sex offences that exist under criminal law. Even in the case of more recently defined offences, such as the distribution of naked images, the law now requires explicit consent – which will be deemed non-existent if one of the grounds for exclusion applies.
2. Consent when intoxicated: from a situation of vulnerability to intoxication and spiking
A situation of vulnerability
Newly included in the applicable laws is the explicit recognition of a situation of vulnerability, in which a person’s free will is affected.
The law now explicitly includes a provision concerning victims who find themselves in a vulnerable situation, more specifically as a result of consuming alcohol, intoxicating substances, psychotropic substances or any other substance with a similar effect. If this has had a negative effect on a victim’s free will, the victim is deemed unable to give valid consent, even if the victim themselves makes the first move.
This does, however, mean that an important nuance must apply. Not every form of intoxication will automatically give rise to a situation of vulnerability and to invalid consent:
- In normal circumstances, a person who has drunk two glasses of wine and is still capable of thinking clearly can still give valid consent.
- Anyone who is heavily intoxicated, on the other hand, is incapable of giving valid consent. In that regard, it doesn’t matter whether the person’s state of intoxication is a result of consuming large quantities of alcohol, a combination of alcohol and medication, or of drug use or any other form of intoxication.
Whenever someone is no longer able to stand up straight, is speaking incoherently or is responding in a confused manner, the rule that applies is as follows: even if someone is saying “Yes”, you must assume that it means “No”. Even if that person verbally agrees or themselves takes the initiative to proceed with sexual acts (for example, in cases of intoxication resulting from compounds with aphrodisiac effects or substances that lower inhibitions), it must be assumed that he or she is potentially incapable of consciously and voluntarily giving consent.
Scientific findings concerning the permillage or the degree of intoxication can play an important role in that regard, but the law does not impose any fixed limit. The key message remains: in order to be valid, consent requires free will. But if that free will is absent as a result of a situation of vulnerability, no valid consent can be given. A judge will be required to determine the extent to which the victim’s free will has been affected and to what extent the suspect ought to have been capable of establishing that.
This becomes extremely complex whenever both parties involved are heavily intoxicated and the presumed perpetrator (also) does not remember what actually happened. In such cases, the responsibility for making that evaluation will rest on the shoulders of the judge of fact, who will be required to analyse and consider the context as a whole.
Intoxication that affects a person’s free remains the determining factor, irrespective of the perpetrator’s own condition or memory loss.
The situation of vulnerability being referred to here also includes situations involving sickness, disability or fear.
The most recent updates to the legislation now explicitly state that a victim who is unconscious or asleep can never give valid consent – which is a logical assumption that was already implied as a result of other grounds for exclusion, but has now unequivocally been included in the law.
Spiking
One of the most stringent new provisions concerns spiking – deliberately drugging or intoxicating another person with a view to performing acts of a sexual nature.
“Spiking” was already a punishable offence before the reforms were introduced. If a perpetrator knowingly administers alcohol, drugs or medication to a victim as a means of procuring sexual acts, deception is deemed to have occurred. Consent is then ruled out automatically.
In cases of spiking, a victim has not voluntarily consumed the alcohol or drugs being misused and the situation then constitutes facilitated rape. The victim is forced to take medication, alcohol or drugs or these are administered without the victim’s knowledge.
Needless to say, society views this particularly seriously. Lawmakers took this into account when formulating the new laws governing sexual offences in 2022.
Whenever the perpetrator commits non-consensual sexual acts after having themselves administered substances that lower inhibitions or substances rendering a person incapable of resistance, this form of rape can be punished more severely under the new law and the maximum sentence has been increased to 20 years’ imprisonment.
3. New, exacerbating circumstances within a changing society
In addition to spiking, the legislation also brings together an entire series of other circumstances that can lead to heavier sentences. A large number of those circumstances had already existed for a long time, such as torture, threatening with a weapon, age, certain situations of vulnerability and discriminatory motives.
The legislative amendments of 2022 have, however, introduced additional exacerbating circumstances, including serious violence, incest, sexual offences motivated by personal hate and the abuse of a position of trust or authority.
The abuse of a position of trust or authority is an especially broad concept and forms a situation in which, for reason of the power dynamic, victims often find it more difficult to oppose sexual acts or subsequently report those acts. This can apply to a variety of situations, including those involving teachers, employers, sports coaches, step-parents, medical professionals, care workers in care institutions, foster parents, ministers of religion, childminders and many other positions of trust.
4. Too young to say ‘Yes’
In cases involving minors, specific rules apply in order to protect them more effectively against abuse and the inequality of power. The law imposes clear age boundaries, taking into account the stage of development of young people and the risk of manipulation.
- Younger than 14 years: Sexual acts with a child below the age of 14 are punishable in all cases. A child of that age is not capable of giving consent, even if no coercion or violence is involved (from a legal perspective, a “Yes” is deemed to be a “No”).
- Young people aged 14 to 16 years: In principle, young people aged between 14 and 16 years of age cannot give valid consent (legally speaking, a “Yes” is deemed to be a “No”), except in cases involving sexual acts between people of the same age, in which the persons involved differ in age by no more than three years. In such cases, the general rules concerning free, informed consent will apply.
By introducing these rules, the lawmakers sought to address the issue that existed previously, in which any sexual act between young people was punishable, even in the event that two young people were in a mutual relationship involving normal sexual relations. Increasing awareness within schools, the media and at home is also a necessity.
- From 16 years to 18 years: In principle, persons in this age category can already give valid consent to sexual acts, but some exceptions do apply:
- No valid consent is possible in the case of sexual relations with a person in a position of authority, such as a teacher, trainer or employer. (Legally speaking, even a “Yes” is deemed to be a “No”). In such situations, the balance of power stands in the way of a person’s ability to give consent of their own free will. This change to the law aims to respond to the large-scale sexual abuse that may have been committed in the past by teachers, sports coaches, step-fathers and other pivotal figures of authority within the world of a minor. In such cases, consent is legally ruled out, due to the fact that the power balance affects a person’s ability to exert their free will, even if a minor is over the age of 16.
- Also, in cases of incest or prostitution, consent by minors under the age of 18 is never valid.
- Furthermore, the absence of consent in the case of a minor under the age of 18 years will constitute an exacerbating circumstance.
5. Furnishing of evidence and victim protection: no obligation to speak, but a right to protection applies
One of the biggest challenges in the case of sexual offences is proving consent or the absence thereof. Whenever intoxication is involved, it is important to act quickly, as traces of alcohol or drugs will quickly disappear from the body.
To help victims to do so, Sexual Assault Care Centres have been set up in Belgian cities such as Genk, Brussels, Ghent and Antwerp. Amongst other things, those centres offer:
- Medical care, such as wound care, STD tests, emergency contraception and treatment in the event of a risk of HIV.
- Psychological support for victims and aftercare
- Forensic examination, if the victim gives permission, including a DNA analysis of the body and clothing and test to determine intoxication.
The important thing is that the victims themselves retain the right to decide – they choose for themselves whether to allow samples to be taken and whether they will or will not submit a complaint.
Samples can also be retained for a time to avoid important evidence being lost. That way, the victim will first have some time to consider whether or not to contact a lawyer.
Whenever a perpetrator is sentenced, the judge can impose additional protective measures, as long as specific, justifiable reasons actually apply. Such measures may include a ban on contacting the victim themselves or an overall banning order from a specific locality, such as the vicinity of schools or other vulnerable environments.
Finally: it remains strictly forbidden and punishable to disseminate publications, images or audio clips that could enable the victim to be identified — except in the event that the victim has reached the age of majority and expressly consents to that or in the event that a magistrate grants permission to do so.
6. Conclusion: clear, universal boundaries, but individual routes towards recovery
By introducing the latest reforms, lawmakers have given a clear signal: abusing vulnerability and obtaining sexual acts without explicit consent will not be tolerated. Remaining silent no longer equates to consent. And in many circumstances, saying “Yes” can actually mean “No”.
This shift reflects a growing realisation within society that the position of the victim is crucial. Victims of sexual violence deserve acknowledgement, protection and accessible assistance. The damage they sustain is often very deep and long-lasting – physically, mentally and socially. A just approach, therefore, not only means imposing punishments, but involves creating scope for the victim’s recovery and safety and for their voice to be heard during the proceedings.
At the same time, ensuring that perpetrators are dealt with in a carefully considered way is still crucial. Committing an act of aggravated rape involving serious violence is not the same as sexually inappropriate behaviour in a context involving intoxication or impulsive behaviour.
Though both situations are serious and are punishable, the approach they require is different. Sexual predators who systematically go on the hunt for vulnerable victims and repeatedly commit offences must be dealt with strictly and firmly – and that includes taking steps to prevent re-offending.
But as far as the perpetrators are concerned, they must be provided with sufficient scope to recognise their guilt, undergo treatment and receive support, such as in cases involving young adults, people with a flawed sense of values or situations in which alcohol and a lack of insight played a part. An approach that is tailored to the perpetrator and includes scope for repression and rehabilitation is therefore essential in order to prevent re-offending and in order to restore and strengthen people’s trust in the judicial system.
Finally, it is clear that responsibility not only resides with the legal system, but that education and increasing awareness within society will continue to play a key role.
Clear communication, providing reporting and support centres and conducting education and publicity campaigns are all necessary in order to disseminate and project the unequivocal message: Genuine consent has only been given if a person consciously and clearly says “Yes” of their own free will.
