From consent to burden of proof: Belgium reforms sexual criminal law
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From consent to burden of proof: Belgium reforms sexual criminal law

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On Tuesday, the Justice Committee examined the government’s proposal for the reform and modernisation of Belgium’s sexual criminal law.

The most important part of the reformed sexual criminal law is the continuous stress on the consent of sex partners, says Federal Justice Minister Vincent Van Quickenborne.

“That consent can be revoked at any time, and then it has to be stopped,” he explained on Flemish radio on Tuesday, adding that the notion of ‘consent’ should make discussions around possible rape “clearer and more transparent.”

With this, Van Quickenborne aims to put an end to the interpretation that used to prevail that there was no rape if there was no violence involved.

“We know that it is often he said-she said. If there is any doubt, it is still up to the judge to decide,” he said, while also pointing out that there are new techniques to prove rape more clearly.

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Additionally, the age of sexual consent (the age at which someone is allowed to have sex) remains at 16 years old in Belgium. However, the government chose to include one exception to that rule: sex is also allowed at 14, but only if the age difference with the partner is not greater than two years.

In practice, this means that a 14-year-old is legally allowed to have sex with a 16-year-old, but not with a 17-year-old. Some are also calling to raise that age range from two to four or five years, arguing that there is a big difference between a 14-year old having sex with an 18-year old or with a 40-year old.

Van Quickenborne stated that he realises that this discussion is ongoing, and emphasised that this is currently still a proposal that will be discussed in Parliament, where “experts will also come to explain things at the hearings.”

Another change being made is the maximum sentence for rape, which will be increased from five years in prison to ten years. On top of that, the judge can also impose mandatory counselling.

However, Van Quickenborne does not want to shift the burden of proof to the perpetrator. Some argue that it is not the victim who must prove that there was no consent, but the perpetrator who must prove that there was consent.

“That goes against all the rules of our criminal law. If there is any doubt, the presumption of innocence applies,” he stressed. “We are not going to reverse that for sexual penal code.”

The Brussels Times

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