By Christine Guillain, professor at UClouvain Saint-Louis Brussels
What are the facts of the case?
The Leuven Criminal Court spoke on Tuesday, April 1, 2025 in the context of a case implicating a student, tried for rape and attacking sexual integrity, for acts that occurred after a Halloween student evening.
It appears from the elements of the file that the victim was in an advanced state of intoxication. She notably specified, during her hearing, that she no longer remembered what had happened during this night and that she woke up naked, in the morning, next to an unknown person, also naked, in an unknown place.
What does the rape law say in Belgium?
The Leuven court stresses that the victim, given his condition, could not consent to sexual relations, which the defendant, also under the influence of alcohol, does not dispute.
In its motivation, the court underlines the gravity of the facts and their socially unacceptable character, adding that “the defendant has shown a lack of respect for the physical, psychological and sexual integrity of the victim and for the consequences that his acts may have had on his well-being, so that he undeniably exceeded the limits of the admissible” (free translation of the Dutch).
The rape offense is a crime punishable by a prison sentence from ten years to fifteen years, while the breach of sexual integrity is a crime punished with a prison sentence from six months to five years. If all the facts were referred to the criminal court and reclassified in crimes, it should not be seen as a leniency measure, the correctionalization of crimes being the rule in Belgium in order to unload the Assize Court.
The violation of rape supposes by hypothesis the absence of consent in the chief of the victim, the Belgian penal code specifying that the consent must have been given freely, that it cannot be deduced from the simple lack of resistance of the victim, in addition to that it can be withdrawn at any time before or during the sexual act.
If the press has lingered at length on the sanction pronounced and the motivation of the judgment, it ignores the legislative change – whose judgment is a perfect illustration – operated by the law of March 21, 2022 modifying the penal code with regard to sexual criminal law as to the definition of consent.
Indeed, according to the new article 417 of the Belgian Criminal Code, there may not be consent “when the sexual act was committed by taking advantage of the victim’s vulnerability situation due in particular to a state of fear, the influence of alcohol, narcotics, psychotropic substances or any other substance with a similar effect, a disease or a situation of disability, altering free will”.
According to the preparatory work of the law, it is not enough that the victim found himself in a situation of particular vulnerability or under the influence of certain substances to be able to speak of not consented sexual acts. It should still be demonstrated that the author abused this situation of vulnerability and that the substance altered the victim’s free will, so that it was prevented from consenting or opposing the act.
Available guilty of rape and breach of sexual integrity, the defendant was granted the suspension of the pronouncement with a five -year test period. The criminal court justifies the granting of this measure having regard to the facts committed and the absence of judicial history of the accused. He also highlights his young age, the regrets expressed at the hearing as well as his favorable personality, the defendant, who pursues a master’s degree in obstetric gynecology, being “a talented and committed young man, much appreciated both on the private and professional level” (free translation).
What is a suspension of the pronouncement and why did the Leuven court have recourse?
The suspension of the pronouncement is a measure of recognizing the guilt of the defendant without pronouncing a sentence. The suspension of the pronouncement is however not synonymous with impunity since the defendant is subject to a test period of five years, during which he must respect a certain number of general conditions. In other words, the measure can be revoked in the event of a conviction for new facts committed during the probationary period. The measure is also entered in the criminal record available to the judicial authorities, even if it is not mentioned on the extracts issued to the convicted persons.
The suspension of the pronouncement is a measure which aims to reduce the inherent disadvantages linked to the pronouncement of a conviction (stigmatization, desocialization, etc.) and to promote the reintegration of the defendant while avoiding recurrence.
The power of judicial individualization leaves the judge the choice of sentence and its severity, according to the circumstances of the case and the personality of the offender. This choice is however framed by the obligation of motivation which is necessary on the judge.
If the motivation of the criminal court intends to meet the legal conditions of the suspension of the pronouncement, it fishs by its stereotypical character and the clumsiness of its words, in that it suggests, that in the absence of socio-professional and talent insertion, the measure could not have been granted.
We regret the media surge which surrounded this case, as well as political precipitation (a federal deputy announced the deposit of a bill in order to “put an end to the complete impunity of rape culprits”), as the late and incomplete communication of the judicial authorities will be deplored. Admittedly, the Leuven prosecution published a press release (to announce that it appealed to the decision which will therefore be reached by the Brussels Court of Appeal) and the judgment was put online on the Internet, but who read it? It should be noted in this regard that the Higher Council of Justice made recommendations in 2024 in order to improve the transparency and the effectiveness of judicial communication to the media and the general public, stressing “that it is important to maintain the integrity of the information relayed to the public by ensuring that the articles and reports faithfully reflect the nuances and the complexities of legal proceedings and decisions of justice”.
This communication deficit – which fuels a certain scandalous press as it nourishes social networks – can only have a negative impact on victims of sexual offenses and their feelings about the judicial treatment of their affairs.
