The new legislation on sexual offences entered into force on 1 January 2023. The legislative reform strengthens everyone’s right to sexual self-determination and personal integrity.
The key change is that the definition of rape is now based on consent. Rape is sexual intercourse with a person who does not participate in it voluntarily. The absence of voluntariness is also an essential element of other sexual offences. As a result of the reform, punishments for sexual offences will become tougher.
In addition to rape, most other provisions on sexual offences in Chapter 20 of the Criminal Code were amended. An important change is, for example, that when the act is sufficiently severe, sexual harassment can be committed through acts other than touching. Non-consensual dissemination of a sexual image is punishable under the amended legislation. The amended legislation addresses sexual abuse online in many ways.
The definition of sexual offences against children emphasises the integrity of the child. Offences against children are classified as more severe than before. The punishments will also be more severe. The starting point is that a child cannot consent to a sexual act with an adult.
The victim’s own will is central to the definition of rape.
Rape means sexual intercourse with a person who does not participate in it voluntarily. Voluntariness must be expressed through verbal expression, gestures or other actions. In addition, voluntariness does not occur if the person is coerced into sexual intercourse by using violence or by making a threat or if the person has not been able to formulate or express his or her will.
The victim of rape often does not actively defend herself or himself in the situation. The victim may also freeze and become passive. Therefore, rape can also take place without violence, threats or other specific infirmity of the victim, such as intoxication or loss of consciousness.
The amended legislation does not restrict sexual activities between adults that do not violate another’s right to sexual self-determination.
Below are practical questions and answers on how the reform will change the definition of rape.
Sexual assault applies to sexual acts other than sexual intercourse. It is a more serious form of unwanted sexual behaviour than sexual harassment. In practice, the legislation has replaced the previous provision on coercion into a sexual act with a new definition based on consent.
Sexual assault refers to performing, by touching or otherwise, a sexual act on a person who does not participate in it voluntarily and the act significantly violates the person’s right to sexual self-determination. Such acts may include intensive or forceful touching of sexually relevant body parts, making a person watch the perpetrator’s sexual activity or making a person commit sexual acts on himself or herself. Photographing or filming a person’s genitals or sexual intercourse may also constitute sexual assault.
Sexual harassment by touching has been punishable also in the past. In the amended legislation, harassment also includes sexual harassment in other ways when the act is so serious that it is comparable to touching. Sexual harassment may involve, for example, verbal harassment, sending or showing a message or a picture, taking a picture or exposing himself or herself to another person.
Non-consensual dissemination of a sexual image
An image, video or any other visual recording must not be shown or disseminated in such a way that it significantly violates another person’s right to sexual self-determination
The act is a criminal offence regardless of whether the image was taken with the consent of the person who appears in it or not.
If a sexual image is taken without the consent of the person who appears in it, the act may be punishable, for example as sexual assault or harassment.
Sexual offences against children
As a rule, the amended legislation classifies sexual offences against children as more serious offences. The punishments are also more severe.
The starting point is that a child cannot consent to a sexual act with an adult. Sexual intercourse with a child under the age of 16 is, as a rule, rape of a child under the new legislation, when it was previously an abuse offence.
Children over 16 but under 18 years of age are also better protected.
Mutual relations between adolescents which do not violate another’s right to sexual self-determination will not be punishable in future, either.