Nepilngadīgās personas skūpstīšana: kad tā ir kriminālpārkāpums saskaņā ar Nīderlandes likumiem?

Kissing a minor is not a separate offence under Dutch criminal law, but it is punishable as soon as the kiss counts as a sexual act (seksuele handeling) with a child under sixteen. Below sixteen consent has no legal effect; for 16- and 17-year-olds the same conduct is only punishable in specific situations, such as abuse of authority, dependence or vulnerability, or payment.

Since 1 July 2024 these cases fall under the Sexual Offences Act (Wet seksuele misdrijven), which rewrote Title XIV of the Dutch Criminal Code (Wetboek van Strafrecht, Sr). Conduct before that date is still judged under the old provisions.

Kas mainījās 2024. gada 1. jūlijā?

The Sexual Offences Act rebuilt the sexual offences around the absence of consent rather than force. Under Article 240 Sr a person commits culpable sexual assault (schuldaanranding) if they had serious reason to suspect the other person did not want the sexual acts; the maximum is two years.

Under Article 241 Sr intentional sexual assault carries up to six years, or eight years if force, violence or threats were used. For rape (verkrachting), which requires sexual penetration, the maxima are four years for the culpable variant (Article 242 Sr) and nine or twelve years for the intentional and qualified variants (Article 243 Sr). Article 251 Sr created separate offences for sexually approaching a child under sixteen, including grooming.

Which age limits decide the case?

Dutch law uses three age thresholds: 12, 16 and 18. Any sexual act with a child under 16 is punishable, whatever the child said or did.

The age of the older party is not an element of the offence below 16. Whether a case between two young people of similar age is actually prosecuted is a decision of the Public Prosecution Service (Openbaar Ministerie), discussed below.

When does a kiss count as a sexual act?

The Criminal Code does not list which acts are sexual; the court decides objectively. It looks at the nature of the contact, the part of the body involved, its duration and intensity, and the circumstances, measured against what is socially normal between the persons concerned.

A conventional greeting or a parent’s affectionate kiss lacks a sexual character and falls outside the provisions. A kiss with clear sexual intent, or one that is part of a pattern of sexual approaches, can fall within Articles 247 or 249 Sr. The age of the child is an objective element: the prosecution does not have to prove that the accused knew it, and only a genuinely excusable mistake about age can lead to acquittal.

Why does consent not help below sixteen?

For children under 16 the legislature made a categorical choice: the child cannot validly consent, and evidence that the child took the initiative does not remove the criminal character. Dutch law has no statutory close-in-age exemption.

What Dutch law does have is the expediency principle (opportuniteitsbeginsel): the Public Prosecution Service is never obliged to prosecute. Its guideline on sexual offences distinguishes exploitation from sexual contact between minors of similar age and position. That discretion is not a right and disappears with a substantial age gap, pressure, payment, images or a relationship of influence.

Why do positions of trust and authority matter?

Under Articles 245 and 246 Sr sexual acts with a 16- or 17-year-old are punishable if the child is your own, a stepchild or foster child, or entrusted to your care, supervision or education, or is your subordinate. The same applies with a particularly vulnerable child, abuse of factual influence, gifts or promises, or deception.

Teachers, carers, coaches, youth workers and therapists fall within this group. Under Article 254 Sr the maximum can be increased by three years in certain cases, such as offences committed together with others, and under Article 254a Sr the court can bar a convicted person from their profession. Schools must report suspicions about staff involving pupils through the procedure set by education legislation, including the confidential inspector of the Inspectorate of Education.

How are these cases reported and prosecuted?

Sexual offences against children are not complaint offences (klachtdelicten): the Public Prosecution Service can prosecute without a complaint from the child or parents, and a report cannot simply be withdrawn. Police vice teams (zedenteams) handle reports, usually after an informative interview.

Under Article 167a of the Code of Criminal Procedure (Wetboek van Strafvordering, Sv), for offences under Articles 245 to 248 and 251 Sr against a minor aged 12 or older, the prosecutor must, where possible, give the minor the opportunity to express their view before deciding. That view counts, but is not a veto.

Is there a limitation period?

For most of these offences, no. Under Article 70(2) Sr there is no limitation period for offences carrying 12 years or more, nor for the offences under Articles 245, 246(1), 247(1) and (2), 249(1), 252 and 253 Sr and, against a minor, Articles 241, 242 and 243(1) Sr. For Article 251 Sr committed against a minor, Article 71 Sr provides that the limitation period starts on the day after the victim turns 18.

How are these cases proved?

Under Article 342(2) Sv a court may not convict on the statement of one witness alone. The complainant’s statement needs support from other evidence, such as messages, images, location data, statements by people the child spoke to at the time, or forensic findings.

The reliability of a statement can become the central issue, especially with young children interviewed more than once. Sexual images of a person under 18 are a separate offence under Article 252 Sr, also when minors exchange them; whether to prosecute such cases is again a decision of the Public Prosecution Service.

What role does the Child Care and Protection Board play?

If the suspect is a minor, the Child Care and Protection Board (Raad voor de Kinderbescherming) advises the prosecutor and the juvenile court on the young person’s circumstances and a suitable sanction. If a child’s safety is at stake, the Board can investigate and ask for a protective measure.

Under Article 1:255 of the Dutch Civil Code (BW) the juvenile judge (kinderrechter) can place a child under a supervision order when the child’s development is seriously threatened. Under Article 1:266 BW the court can terminate parental authority in the gravest cases. These civil proceedings run alongside the criminal case, and an acquittal does not automatically end them.

Kas seko notiesāšanai?

The statutory maxima in the table are ceilings, not tariffs. The court weighs the seriousness, the age difference, duration, any dependency, the impact on the victim and the personal circumstances of the accused; juvenile criminal law has its own sanctions.

A conviction is recorded in the judicial documentation system and will normally block a certificate of conduct (Verklaring Omtrent het Gedrag, VOG) for work with minors; see kas ir kriminālā reģistrācija. The court can impose a contact or area ban, and victims can join the proceedings as an injured party to claim compensation. How a case reaches trial is explained in our article on pavēste un tiesas sēde Nīderlandes krimināllietā.

Kas jums jāpārbauda kā aizdomās turētajam?

• Check the date of the alleged conduct: before 1 July 2024 the old provisions apply.
• Check the age of the other person at that time against the 12, 16 and 18 thresholds.
• Use your right to consult a lawyer before the first police interview and to have one present.
• Do not contact the other party, their family or witnesses, directly or through others.
• Secure messages, location data and other material that supports your account.

What should you check as a parent or victim?

• Contact the police vice team for an informative interview before filing a report.
• Keep messages, images and screenshots without forwarding sexual images of a minor.
• Check whether the other person held authority or care over the child (Articles 245 and 246 Sr).
• Ask Slachtofferhulp Nederland for support and consider joining the case as an injured party.
• Contact Veilig Thuis if the child’s safety at home is at stake.

What can we do for you in a case involving a minor?

mūsu krimināladvokāti act for suspects and for victims, as described in our article on victims’ rights in Dutch criminal proceedings:

• Mēs jums palīdzēsim pirms policijas nopratināšanas un tās laikā.
• We assess the file, the evidence and whether the conduct was a sexual act under the Criminal Code.
• We ask the prosecutor to drop the case where the circumstances justify it.
• We defend you at trial or represent the victim as an injured party claiming compensation.
• We act in parallel child protection proceedings before the juvenile judge.

Kopsavilkums

• A kiss is punishable only if it is a sexual act; a normal greeting or affectionate kiss is not.
• Below 16 any sexual act is punishable regardless of consent (Articles 247 to 250 Sr).
• For 16- and 17-year-olds the act is punishable with authority, dependence, vulnerability or payment (Articles 245 and 246 Sr).
• There is no close-in-age exemption; only prosecutorial discretion.
• Most of these offences have no limitation period (Article 70(2) Sr).

Citas tēmas skatiet mūsu Nīderlandes krimināltiesību rokasgrāmatu rādītājs.

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