Distinguishing between harmless attempts at flirting, a friendly gesture, and sexual harassment might seem difficult to some. However, there is a simple rule: It is not about the intent behind an action but about how it is perceived by the recipient. For many, this principle constitutes the essence of the definition of sexual harassment.
In Luxembourg, the law explicitly states that any unwarranted physical contact, which crosses personal boundaries, qualifies as a criminal offence. Lawyer Brian Hellinckx clarifies that this does not necessarily refer to a casual shoulder touch, but rather to intimate areas, such as the breasts or genitals, or persistent inappropriate contact, like prolonged leg touching.
In the Grand Duchy’s legal system, the intention of the alleged perpetrator does, however, also play a role. If an action was genuinely a well-meaning gesture that was “not well received” by the victim, punitive action is not warranted, according to Hellinckx, who notes that there is always the possibility that a person could “accidentally” have touched someone’s breasts or buttocks. However, the scenario changes if an individual continues touching another person’s leg after being explicitly told not to do so, thereby falling under the umbrella of sexual harassment.
At the far end of the spectrum, the most severe form of sexual violence is rape, defined as any non-consensual intrusion into a person’s body.
Currently, Hellinckx is involved in a case involving multiple women who claim to have suffered sexual harassment, humiliation, manipulation, and, in two instances, sexual abuse by the same individual. This case is complicated because it only came to light when two of the affected women shared their experiences and realised they were not alone in their ordeal. Only then did they come forward and seek legal assistance from Hellinckx, who subsequently referred them to the judicial authorities. As time went on, an increasing number of women emerged, sharing similar experiences with the same individual.
While the intricate details of specific cases are not disclosed at this time, Hellinckx provided insights to our colleagues at RTL.lu, shedding light on why cases involving sexual harassment and sexualised violence can be complex to adjudicate.
One primary concern is that those affected often wait too long to go to the doctor or the police, Hellinckx said. In the event of a rape involving penetration, the immediate recourse should be to approach law enforcement and file a report, according to the lawyer. Promptly contacting the police in these situations triggers a medical examination, which includes a sexual aggression kit. This kit helps establish critical details, such as the occurrence of penetration, the presence of DNA evidence, and any physical injuries sustained. Subsequently, a comprehensive report is generated, which can be pivotal in substantiating the case when it reaches the courtroom.
“Unfortunately, victims often wait far too long,” Hellinckx said. Often overwhelmed by shame and the desire to cleanse themselves, victims may hastily shower, attempting to “wash away” the distressing incident. In addition, they may hesitate to share their ordeal with family and friends. “Then, after two months, they snap, tell everyone, and decide to go to the police,” Hellinckx said. At this juncture, the case largely relies on conflicting testimonies, making it substantially challenging to ascertain the occurrence of the alleged misconduct beyond reasonable doubt.
One pressing question that often arises is the long waiting time between the filing of a complaint and any concrete legal action that follows. In response to this concern, Hellinckx offered insights into the intricacies of the process.
“When a complaint is lodged, the initial step involves documenting the details of the case,” Hellinckx elucidated. Subsequently, the public prosecutor’s office is brought into the fold, assessing the nature of the case and the individuals involved. It is then the responsibility of the police to interview those relevant to the incident, gathering their statements and their perspectives on the events that transpired. When the accused denies any wrongdoing, it can often present a significant challenge, making it difficult to substantiate the case. In a bid to bolster their investigation, the police may undertake preliminary inquiries, such as retrieving messages or any supporting evidence. In situations where such evidence is lacking, the legal process encounters substantial hurdles, causing delays in the proceedings.
Hellinckx further explained that the public prosecutor’s office sometimes opts to temporarily suspend a case when the available evidence is insufficient. Rather than dismissing it entirely, they keep the matter on hold, anticipating the possibility of new developments. This could arise from the same victim or another person who comes forward against the same perpetrator, potentially revitalising the case. “But unfortunately, it’s often pointless to pursue something further if you know from the start that it’s going to be an acquittal,” Hellinckx acknowledged.
Conversely, when a case hinges on established facts, the person implicated must be heard, the lawyer said. However, the process is impacted by the substantial workload of the personnel at the public prosecutor’s office, often contributing to the sluggish progression of cases. Coordination challenges also arise, necessitating the alignment of schedules between the public prosecutor’s office and the court. The involvement of a legal representative for the individual in question can further extend the proceedings. The lawyer may request case suspension, deferring any potential resolution for an additional year. These intricate aspects collectively contribute to the prolonged duration of legal proceedings.
Despite these complexities, Hellinckx stressed the importance of not dissuading victims from reporting offences, emphasising that even if the process is lengthy, it ultimately leads to a resolution.
Hellinckx underscored the prevalent misconception that being married grants an implicit right to engage in sexual relations at any time. He clarified that this is not the case. Luxembourg’s penal code acknowledges the concept of ‘marital rape,’ emphasising that both spouses can be victims or perpetrators. The crucial point is that if an individual unequivocally refuses consent by saying ‘no,’ it must be respected. Hellinckx disclosed instances where affected clients were unaware that non-consensual sexual activity within a marriage constitutes rape. Therefore, he believes that it is vital for individuals to be informed that ‘marital rape’ is recognised in Luxembourg, empowering them to report any perceived incidents of rape within a marital context.
Hellinckx noted that the acknowledgment of ‘marital rape’ is not exclusive to Luxembourg. It is a recognised concept “in most Western countries.” In Luxembourg, the recognition of ‘marital rape’ dates back to 1994 when the Court of Appeal ruled that the standard legal provisions regarding rape should be equally applicable in cases involving spouses. In 2013, a legal amendment enabled the imposition of doubled penalties for cases of rape committed by a spouse.
