Vroegere definitie verkrachting Belgisch strafrecht
The definition of the crime of rape has evolved greatly throughout history.
In the first Belgian Penal Code of 1867, the crime of rape was not defined but was criminalized:
"shall be punished with imprisonment, whoever commits the crime of rape, whether by violence or grave threats, or by deceit, or by abusing a person, who as a result of illness, by disruption of his faculties, or from any other accidental cause, has lost the use of his senses, or has been deprived of them by any artifice".
De definitie van verkrachting werd overgelaten aan de rechtsleer en rechtspraak die er vanuit ging dat verkrachting enkel kon plaatsvinden bij: “de penetratie met een penis in een vagina”(peniaal-vaginaal). Het victim could under such definition thus only a woman are.
In addition, the criminal code in 1867 stated that these sexual intercourse illegal had to be. This meant that penetration had to happen outside of marriage. Within marriage there could be no question of rape. Consequently, a man could not rape his wife. This was part of the duty one entered into when signing the marriage contract. After all, by signing a marriage contract, the parties undertook to have sexual relations with each other and also to limit them to each other.
The crime of rape was considered a violation of the order of the family and not the disregard of a person's sexual self-determination. Last but not least, rape could only occur when sexual intercourse took place without the victim's consent.
Thus, the following elements were required, so to speak:
- A penile-vaginal penetration;
- which was illegal (took place outside the marriage);
- committed against a person who did not consent to it.
Wat is verkrachting binnen het huwelijk nu
In 1989 veranderde de definitie van het misdrijf “verkrachting” drastisch. Het was ook de eerste maal dat de wet het concept “verkrachting” definieerde. Sindsdien luidt de definitie van verkrachting:
“any act of sexual penetration of any kind and by any means, committed on a person who does not consent thereto".
This law brought a huge change. Starting in 1989, penile-vaginal penetration disappeared as a requirement for rape. This had the main consequence that since then, a man victim and a woman perpetrator of a rape can be.
In addition, the "illegality" requirement disappeared. So rape can also occur within marriage since the change in the law.
Strangely enough, a marriage contract does still include the duty to have normal casual sexual relations with each other and also to limit them to each other. On the other hand, one is not entitled to enforce this duty oneself and to force sexual penetration with one's spouse. For such an act, today would do qualify as rape.
Advocaat verkrachting inhuren
Wenst u meer informatie over het misdrijf verkrachting of wil u worden bijgestaan door een gespecialiseerde advocaat? Neem dan gerust contact met ons op via info@bannister.be of via 03.369.28.00.
December 20, 2020
