Sidewalk chalk against sexual violence at the Janskerkhof in Utrecht. Photos: Karen/Amnesty Netherlands

Students say not much will change if sexual consent becomes law

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“A no is a no. Not a no doesn’t automatically mean yes.” That’s the principle behind the law minister Grapperhaus of Justice and Security aims to pass. Students are welcoming the law: “I always focused on mutual consent.” This autumn, the public debate about the preliminary draft of the proposed bill will start.

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Direct cause for the new ‘sex law’ stems from the #MeToo movement, which made clear just how widely spread sexual misconduct is. The strong social censure made the minister feel it’s time to adjust the law. The current legislation sometimes makes it difficult to convict rapists, because use of force needs to be proven. That isn’t always easy – for instance because the victim may be paralysed with fear. The new law changes this. By introducing new crimes such as ‘non-consensual sex’ and ‘sexual harassment’, in which force and/or violence are no longer criteria, the minister hopes to increase victims’ safety. Moreover, duty of inquiry will be introduced for partners, which means that in case of doubt, they always have to ask for consent. Not a no doesn’t equal yes.

A representative study conducted among 2,700 adults by Wat Vindt Nederland (‘What does the Netherlands think?, ed.) had previously shown that 62 percent of women agree with the new law, as opposed to 43 percent of men. Still, there is some criticism. Amnesty International doesn’t agree with the lower sentence for non-consensual sex. The sentence for that crime is six years, while the sentence for rape is 12, says Jeanine van Dalen, activist leader with the Utrecht division of Amnesty. “Every form of non-consensual sex is, simply put, rape (…). A lower sentence like that is actually unfair.”  Of course, the proposed bill has not been finalised yet. This month, the ministry hopes, a public debate will follow.

Oké

According to Jente* (21, UCU), the sex bill won’t change much for her: “After a night of partying, I’d definitely ask whether someone’s okay with sex; I already do so now, and I think it’s important. I have always focused on mutual consent.” For that reason, she’s not afraid of being accused of non-consensual sex. Could it ruin the atmosphere? “On the contrary, I think that for both parties, it’s nice to know where you’re at.”

Jente is worried about what might happen if one or both parties are under the influence: “Because that impairs the feasibility of logical thought and checking for consent.” Although Jente is not in a relationship, she can imagine the communication between partners might be less explicit then, because you know each other better. Still: “Checking whether something is still okay every now and then, isn’t a crazy idea.” Jente agrees with Amnesty International in that she says non-consensual sex should always be classified as rape. “By calling it a different name, it sounds as though it’s less bad.” The new law, she says, is no more than a step in the right direction.

You have to ask
Joep Lindeman, associate professor of Criminal Law, emphasises that it’s a proposed legislation, and that there are still unclear aspects about which cases the law will or won’t cover. It’s not the intent, for instance, that this law will cover all situations in which people regret their sexual acts after the fact, he says. “If you get drunk voluntarily and then do something you later regret, there’s also a piece of one’s own responsibility there.” Abusing the proposed law as a method for revenge will also be next to impossible. “You have to prove the perpetrator knew, or had reason to suspect, that the victim didn’t want sex.”

Lindeman also mentions that aside from the duty of inquiry, there’s also a duty of effort: one has to ensure the other knows (or can reasonably know) that they’ve reached their limits. “It’s simple; if you want to be sure, you have to ask.” He expects the law won’t mean the end of free sexual morals for students: “Perhaps they’ll be a little more restrained, and that’s not a bad thing.” Outside of student life, Lindeman sees the options offered by the law, for instance prosecuting sexual deception and exploitation.

Awkward

Lieke* (22, Educational Sciences) is also in favour of the new law as a step in the right direction: “I believe many people don’t dare fight back, or freeze in the moment; in my eyes, non-consensual sex is rape, too.” Although Lieke believes in the importance of asking consent, she admits it might be trickier in practice. “Asking whether someone wants sex can be a little awkward. I would ask something like ‘I want to take this further, how about you?’ or ‘is this okay?’. I think that way, you can prevent a lot of unpleasant sex.” In Lieke’s own relationship, consent has become something more implicit. “After a while, you learn to recognise the other’s signs, and you’ll know from their posture or facial expressions whether the other wants to or not.”

Appropriate sexual education
To what extent the new law will have an effect on students’ behaviour depends on the knowledge students have of the proposed law, says Ine Vanwesenbeeck, professor of Sexual Development, Diversity, and Health. In other words, appropriate sexual education is essential to ensure young people’s behaviour complies with the law. That isn’t easy, says Vanwesenbeeck, because consent is not a black and white principle. “In sexuality, there’s a continuous, complex social process, in which people can even want several (opposing) things simultaneously. Moreover, consent isn’t always given from the perspective of sexual motivation, but also from a feeling of loyalty or duty, for instance. Stereotypes and standards about male and female sexuality play a big part in this.”

Still, Vanwesenbeeck doesn’t think students will be afraid to have sex after the law comes into effect. “Sexual assault and rape have always been crimes, and that hasn’t kept people from sex, not even from committing sexual assault or rape.” One thing the law might cause is a sense of restraint, the professor says, and that isn’t truly desirable but it’s at least better than crossing boundaries.

Vanwesenbeeck doesn’t see any changes worth mentioning for BDSM (Bondage and Discipline (BD), Dominance and Submission (DS), Sadism and Masochism (SM) with the new law either: “It’s a misunderstanding that BDSM is, by definition, about crossing your limits. In general, people who have these preferences tend to focus a lot more on explicitly finding each other’s desires, and making agreements. I’d say ‘regular’ sexual practice could learn a lot from that.”

Vanwesenbeeck concludes that a new law could be a positive influence on students’ sexual behaviour, but that that effect can only happen when and if students are aware of the expectations set by the law. In this, it’s crucial they possess the necessary capabilities (for instance, communication skills and empathy) to meet those expectations.

Joy

Asked what he thinks of the new law, Aart (23, Veterinary Medicine) responds: “It’s sad the law is necessary.” He says intimacy is a vulnerable thing, so every initiative that sets out to protect that, is good. “I’ve always been careful with sex; I’d never force myself on a woman.” For him, then, little will change. He also thinks it’s important to be open about sex: “Figuring out together in which ways sex will work for you is great, and should always be a part of it.” Whether asking for consent kills some of the joy? Absolutely not; Aart says it can easily be incorporated into foreplay. “Everyone who thinks asking for consent kills some of the joy, can call me.”


* Given the sensitive subject, the names of some of the students have been changed at their request. The students’ identities are known to the editors.

Translation Indra Spronk

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