On Wednesday 19 January 2022, Luxembourg's Minister of Justice, Sam Tanson, presented a draft law aimed at strengthening the means of fighting the sexual abuse and sexual exploitation of children.
This draft law will both transpose European Union (EU) directives on combatting the sexual abuse and sexual exploitation of children, as well as child pornography, and amend the Criminal Code and the Code of Criminal Procedure in Luxembourg.
The draft law will introduce the following:
- new terminology for “indecent assault” which becomes “violation of sexual integrity”;
- a definition of consent to a sexual act;
- more precise and broad definitions of rape and sexual assault (wording encompassing the digital and non-digital environment).
It will also create stand-alone offences of rape of a minor and incestuous relations (rape and sexual assault) with a minor, as well as revising the limitation periods upwards and introducing imprescriptibility for the most serious crimes.
The objective of this draft law is to strengthen the legislative mechanism relating to sexual abuse, in particular that committed against children, because of their vulnerability and taking into account their best interests.
Moreover, the draft law in question specifies the constituent elements of the offence of manufacturing, transporting and disseminating a message of a violent or pornographic nature or of a nature that seriously undermines human dignity, as well as the fact of trading in such a message, involving or presenting minors or a particularly vulnerable person.
In terms of defining consent, the draft law enshrines the jurisprudential principles related to consent and resumes the criminalisation and effective repression of any non-consensual sexual act, including when the victim has not offered physical resistance. Consent can be withdrawn at any time before or during the sexual act. Then there is the irrebuttable presumption of absence of consent when the victim is a minor.
The draft law will also introduce two definitions: for rape and for assault on sexual integrity. The definition of rape specifies that this is any form of penetration with a sexual connotation. In the case of violation of sexual integrity, the text notes that it may be “of any nature whatsoever and by any means whatsoever”. The definitions of these offences now cover not only the sexual acts performed by the perpetrator on the person of the victim, but also the acts that the victim was led to perform on the person of the perpetrator, on himself / herself or on a third party. In addition, the revised or created offences have a deliberately broad wording and scope of application, in order to cover both offences committed offline and those committed in the digital environment.
Regarding the protection of minors under the age of sixteen, the bill maintains the prohibition on having sexual relations with minors under this age. Two new articles relating to sexual violence committed against minors under the age of sixteen will be created:
- any violation of sexual integrity, of whatever nature and by whatever means, committed against a minor under sixteen or with the help of a minor under sixteen, including when said minor is led to commit the act on his / her own body or the body of a third party, whether he / she consents to it or not. The age threshold is increased from eleven to thirteen years (aggravating circumstance) and the sentence, in the event of violence or threat committed against a minor under thirteen years of age, is also increased;
- any act of sexual penetration committed on a minor under the age of sixteen is qualified as rape, since the minor is not able to consent to it. The draft law introduces two separate offences in the area of incest, in the event of incestuous violation of the sexual integrity of a minor and incestuous rape of a minor.
The penalties will be increased as follows:
- incestuous sexual integrity violation: from two to ten years to five to ten years;
- incestuous rape of a minor: from twelve to 30 years to 20 to 30 years.