Sexual Violence and Belgian Criminal Law: Consent, Proof, and Drug-Facilitated Assault

This paper examines how the new Belgian criminal law addresses sexual violence when such acts are facilitated by the use of psychoactive substances. The focus is particularly on the concept of consent, the conditions under which it is valid, and the evidentiary challenges linked to the administration or consumption of drugs. The main aim is to assess whether the reform introduced by the law of 21 March 2022 provides effective protection to victims, without unduly restricting their sexual autonomy in situations of temporary vulnerability.

We discuss the critical analysis carried out by Belgian legal professionals who have examined the new notion of consent as defined in the Sexual Criminal Code (together with a critical reading of legal texts, preparatory works, recent case law, and circular COL 05/2022). These doctrinal analyses are then confronted with the specific issue of chemical submission in order to assess their relevance and their limits. Our approach is strictly legal and uses doctrinal interpretation tools to highlight the tensions between the legislator’s protective intentions and the need for legal clarity.

The study shows that although the introduction of a legal definition of consent represents an important symbolic step forward, certain parts of the text (in particular those dealing with altered free will) remain vague. This lack of clarity becomes even more apparent when the victim’s vulnerability results from the voluntary use of substances such as alcohol. This creates a risk of inconsistent interpretations and uneven protection in judicial practice.

The analysis suggests that the protection of individuals under the influence of substances still depends on case-by-case assessment by the judge. While this flexibility allows for adaptation to different situations, it may also weaken victims’ rights. Therefore, clearer and stricter guidelines on the notion of incapacity appear necessary to ensure both legal certainty and respect for sexual self-determination.