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.