“The main goal--there are a few--, is to make it evident in our penal code that these are very, very grave offences, especially when performed on minors, but not only,” Tanson explained in a press conference. The draft law aims to evolve with society, by taking into consideration new psychological understandings, such as that of trauma-related amnesia, and the dangers of the digital world.

The importance of terminology

A key modification in the legislation is the wording. Previously called “indecent exposure” (“atteinte à la pudeur), such acts are now considered “sexual assault” or an “assault on the sexual integrity” (“atteinte à l’intégrité sexuelle”. This not only reflects a EU-wide change in terminology, but also expresses the gravity of the act. “Not only the integrity of a person can be affected and shaken by this, their entire being is too,” said Tanson.

An adaptation of the and of the Lanzarote convention on children’s protection, the law aims to protect victims of sexual violence better, with a strong accent on the protection of minors.

A wider definition of consent and abuse

Though already inscribed in the current law, under this proposed text, minors under 16 are in no case considered able of giving their consent, regardless of their behaviour and knowledge. As a consequence, all sexual acts towards under-16s are forbidden and punishable by law. This extends to 18 years old in terms of incestuous sexual abuse. 

For assault on a child’s sexual integrity, cases for under13s become an aggravating factor. Previously, it had been the case for children under the age of 11.

“The question of consent is in the centre of an act of violence,” explains Tanson: “We took the decision to transpose what is currently jurisprudential in the text.” This would give victims more safety in a legal context.

The draft law also considers consent retractable at any given moment before or during the sexual act. A lack of physical resistance also didn’t signify consent, Tanson said, adding that the gender of the offender and victim would not be key in the consideration of a crime anymore.

Furthermore, the definition of rape has been extended to include oral and anal penetration, not only by genitals but also by objects. This component covers a previous shortcoming in the grand duchy’s legislation. The minister of justice specified in her presentation that acts of sexual violence or rape also count when the act does not take place on the victim’s body, but on the body of the offender of a third party.

A neutral text to protect children online and offline

Aiming to cover both the physical and digital spheres, the draft law broadens the definitions of consent as well as what constitutes an abuse. The aforementioned precision on the location of a physical act would allow the legislation to cover the online sphere, where child sexual abuse material (CSAM) and acts targeting minors have          

Additionally, article 383bis on the production, transport or diffusion of pedopornography--Tanson mentioned the term would still be adopted as it aligns with EU directives--has been modified. Where previously it was punishable by law to engage in one way or another with CSAM content if minors could be exposed to it, the latter component of the article has been dropped. As soon as the law is voted in, any sort of interaction with CSAM becomes punishable by law, whether minors have access to it or not. One to five years of imprisonment, as well as a €251-€75,000 await those offenders.

Luxembourg-based Pornhub owner of its content taken down after accusations of making profit off hosting CSAM were made against it.

Incestuous child abuse, an autonomous infraction

Under existing national legislation, incest only constitutes an aggravating factor in the legal prosecution of a child offender. However, this should change, said Tanson, as it would happen in a familial context. The change proposed should underline the gravity of such an act, she explained.

Under the new law, incestuous acts against the sexual integrity of a child are thus punishable by a 5-10 year imprisonment--it used to be 2-10 years--, whereas the rape of a child by a member of its family now leads to 20-30 years of prison, instead of 12-30.

The list of people who could be considered perpetrators of incestuous acts has also been broadened to include “parents, legitimate ascendants, natural or adopted, any person in the collateral line up to the third degree (brothers, sisters, uncles, aunts), as well as any ally up to the third degree (stepfather, stepmother, stepbrother, stepsister),” stipulates the ministry of justice. Former cohabitants or current cohabitants of one of these members can also count in the definition, as do those who have authority over a victim.

Adult victims of incest will be considered within the legal frame of sexual abuse or rape, with the incestuous component constituting an aggravating factor.

Longer delays for prescriptiveness

One of the reasons for the adaptation of the legislation, as Tanson explained, was the advances made in psychology. The latter revealed that children could suffer from selective memory loss when sexually abused, meaning that by the time the child remembers, legal pursuits were no longer possible.

The new text offers victims “as much time as they need to grieve what happened,” said Tanson while also seeking justice.

For this, children who suffered from an assault on their sexual integrity or genital mutilation can pursue their offender in the 30 years after becoming an adult. There is now also an unlimited time for minors victims of rape or incestuous rape to pursue their offender. Offences against minors can be pursued for ten years after the child has turned into an adult. These rules would become applicable for any crime committed prior to the adoption of the new law.

The draft law now has to be discussed by the state council and the chamber before being voted in parliament. The justice minister was, however, not able to give an estimated date for its implementation.