Authors:
- Janwillem Oosterhuis, Faculteit der Rechtsgeleerdheid (Faculty of Law), Universiteit Maastricht (Maastricht University) - ORCID, ResaerchGate

Abstracts:
- »Chapter Seven tackles The Netherlands. With the title “The Dutch Supreme Court on rape and sexual assault between 1886 and 1991”, Janwillem Oosterhuis, Associate Professor of Legal History, at the Maastricht University, shows that in the Netherlands, sexual morality changed profoundly between the end of the 19th century and the 1970s. To a considerable degree, this changing morality is reflected in criminal legislation, particularly when it comes to adultery, homosexuality, and pornography. In the same period, however, certain codes’ articles on sexual morality remained unchanged. For more than a century, between 1886 and 1991, the articles on rape and sexual assault stayed the same. Only in 1991, when a revision of the Wetboek van van Strafregt (Criminal Code) took place, including the title on sexual crimes, were these articles revised. The question is whether this changing public morality is reflected in the decisions of the Hoge Raad, the Dutch Supreme Court, on sexual morality, focussing on rape and sexual assault. Decisions of the Hoge Raad on adultery are almost completely absent, due to the de facto decriminalisation of adultery by the Hoge Raad in a decision of 1883. An analysis of decisions of the Hoge Raad on adultery therefore cannot be part of this investigation.
Janwillem gives clear evidence that, in the period between 1886 and 1991, societal convictions on sexual morality changed considerably. From a relative liberal, though perhaps authoritarian beginning, when the Wetboek van Strafrecht came into force, public opinion became more concerned about indecent sexual behaviour, which is reflected in more stringent rules on sexual morality. It appears that the Hoge Raad closely followed legislative developments on the (de)criminalisation of sexual behaviour. However, the Hoge Raad was certainly not marching in front of the troops where it concerned rape and sexual assault. From a more stringent approach towards sexual behaviour, no trace can be found in the decisions of the Hoge Raad between the 1900s and 1930s on rape and sexual assault. Unsurprisingly, perhaps, as the Hoge Raad has the task to safeguard the correct application of the law – not its development, certainly not in the first place.
Since the 1960s, society became more permissive about sexual behaviour, which was for instance reflected in the decriminalisation of adultery and homosexuality. Unsurprisingly perhaps, Janwillem argues that this permissiveness is not reflected in decisions of the Hoge Raad about rape or sexual assault for this period. Since the 1980s, the emphasis has been placed on protecting vulnerable people, but from a liberal perspective: all people, including the more vulnerable, should be able to make their own choices when it comes to sexual contacts or relationships. Again, although some decisions might be placed in the perspective of upcoming legislation and/or the stronger protection of individual choices, there is no coherent line, for instance of protecting vulnerable persons. If anything can be said, it may be that the Hoge Raad has become slightly less predictable in its decisions on rape and sexual assault, compared to the 1900s to 1930s, where consequently a literal interpretation was applied to Articles 242 and 246 of the Wetboek van Strafrecht. The Hoge Raad has thus certainly been no trailblazer or pioneer when it comes to reflecting or implementing a changing morality in its decisions on rape and sexual assault. In view of its function as court of cassation, that may be for the better. This also means that the current shift towards positive consent when it comes to sexual relations, instead of the absence of force, will be something for the legislator to carry out. Particularly when it comes to sexual crimes, the reflection of a changing sexual morality in the law, can – and admittedly has to – be expected from the legislator, not from the Hoge Raad.« (Source: Aniceto Masferrer. »The contribution of case law to the making of Western criminal law.« The Making of Criminal Law: The Role of Case Law in the 19th and 20th Centuries. Edited by Aniceto Masferrer. London 2026: 27-28)

- »In the Netherlands, sexual morality changed profoundly between the end of the 19th century and the 1970s. To a considerable degree, this changing morality is reflected in criminal legislation, particularly when it comes to adultery, homosexuality, and pornography. In the same period, however, certain articles on sexual morality stayed the same. Between 1886 and 1991, the articles on rape and sexual assault remained unchanged. Only in 1991, when a revision of the Wetboek van van Strafregt (Criminal Code) took place, were these articles revised. This chapter investigates whether the changing public morality is reflected in the decisions of the Hoge Raad, the Dutch Supreme Court, on sexual morality, focussing on rape and sexual assault. Decisions of the Hoge Raad on adultery are almost completely absent, due to the de facto decriminalisation of adultery by the Hoge Raad through a civil law decision of 1883. Apart from this early decriminalisation of adultery via civil law, it appears that the Hoge Raad did not take the lead in adapting the content of criminal law concepts to changing views on sexual morals and marital relations. In view of its function as court of cassation, that is maybe for the better.« (Source: Taylor & Francis Online)

Contents:

	1. Introduction (p. 178)
	2. The Hoge Raad as court of cassation (p. 179)
	3. Sexual morality in Dutch criminal law (p. 180)
		3.1. Dutch Republic, Batavian Republic, and Kingdom of Holland (1581–1811) (p. 181)
		3.2. Code pénal 1811–1886 (p. 181)
			3.2.1. Adultery under the Code pénal and the Burgerlijk Wetboek (p. 182)
			3.2.2. Prosecution of homosexuality under the Code pénal (p. 185)
		3.3. Wetboek van Strafrecht 1886–1991 (p. 186)
			3.3.1. A liberal enterprise with a conservative trait: the criminalisation of adultery (p. 186)
			3.3.2. Safeguarding public morality: criminalisation of homosexuality, pornography and pimping (1911–1960) (p. 187)
			3.3.3. From sexual revolution to protection of the vulnerable (1960–1991) (p. 188)
		3.4. Between safeguarding public morality and protecting individual freedom (p. 189)
	4. The Hoge Raad on rape and sexual assault between 1886 and 1991 (p. 190)
		4.1. Defining rape and sexual assault in 1886 and 1991 (p. 190)
		4.2. The Hoge Raad: finding the law? (p. 191)
			4.2.1. Rape and sexual assault (1900s to 1930s) (p. 192)
			4.2.2. Rape and sexual assault (1960s to 1980s) (p. 194)
	5. Conclusions (p. 197)
	List of judicial decisions (p. 197)
	Bibliographical references (p. 198)

Wikipedia: History of Europe: History of Netherlands | Court: Dutch Supreme Court | Sex and the law: Sexual assault, Rape