03.13.13

Dutch Supreme Court’s ‘Forced-Tongue Kiss’ Rape Ruling Explained

The Netherlands’ highest court has overturned a law that prosecuted a “forced-tongue kiss” as rape, which carries a maximum 12-year prison sentence. Lizzie Crocker breaks down the latest ruling.

A “forced-tongue kiss” is considered a form of rape in the Netherlands?

Not anymore. The Dutch Supreme Court has decided that such a kiss should no longer be prosecuted as one of the worst forms of sexual assault (the act of plunging an unbidden tongue into another’s mouth has been considered a crime equal to rape by the highest court in the Netherlands since 1998).

On Tuesday, a Supreme Court panel of three men and two women overturned a lower court’s rape conviction of a 36-year-old man for forcibly French kissing a woman in a hospital restroom. In its ruling, the panel said that a forced-tongue kiss is still illegal and should be counted as a potential form of sexual assault—one that carries a maximum eight-year prison sentence in the Netherlands. Rape, by contrast, carries a maximum 12-year sentence.

Why was the “forced-tongue kiss” ruling overturned?

Let’s start with the loopholes.

This law was slippery from the start, broadly defining rape as “any form of unwanted sexual penetration,” including shoving one’s tongue into the mouth of an unwilling recipient. One would think that, under these terms, “rape” would be extremely difficult to prosecute, given how easily one party could argue that the slip of the tongue was a simple misunderstanding.

Consider the following scenario:

Two friends are parting ways after sharing a few drinks. One of them nonchalantly goes in for a lip kiss while the other presumes tonsil hockey is more appropriate, at which point the lip kisser pulls away and cries out, “You stuck your tongue down my throat!” In the United States, this awkward rendezvous might be grounds for cutting off all contact, as well as name-calling and labeling (e.g. “the aggressive predator” and “uptight” chick). But the aforementioned “uptight” chick would have a hard time making a case for sexual assault under these specific circumstances.

This law was slippery from the start, broadly defining rape as “any form of unwanted sexual penetration,” including shoving one’s tongue into the mouth of an unwilling recipient.

That’s not to say intrusive tongues—in the United States or abroad—should never be punished.

There are plenty of scenarios in which a forced-tongue kiss could constitute sexual assault and be legally punished as such, especially if there’s any evidence of coercion, threats or other unsolicited physical contact. In the United States, many sexual assault experts consider rape as any form of unwanted bodily invasion.

The Netherlands isn’t the only country where “rape” is vaguely defined.

Despite adolescent associations with tongue-to-tongue contact and French kissing, France is strict with predatory tongues. A forced-tongue kiss could technically constitute rape in the country, though it is almost never prosecuted as such in court. In the U.K., an undesired tongue kiss was disassociated with rape under the 2003 Sexual Offences Act.

In the United States, Todd Akin introduced us to the much-derided term “legitimate rape,” which cost the Republican congressman his bid for Senate. Just last year, the FBI changed the United States’ controversial 80-year-old definition of rape, which was previously referred to as “forcible rape” and did not include anal penetration. Rape now covers “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”