Strides towards criminalising non-consensual sexual activity and making consent mandatory in law have been made all around the world
We propose that sexual offences legislation should include the following definition of consent:
To ensure sexual integrity and bodily autonomy, consent must be obtained during honest, respectful, genuine, open communication. Consent must be obtained for each sexual act between the parties. Consent can be withdrawn at any time. Consent must be obtained for sexual activity in the digital realm to ensure the right to privacy, confidentiality and non-defamation. Consent must be informed, voluntary, free without monetary compensation, retractable and unequivocal. Consent can only be given when one has capacity.
It will be assumed that consent can neither be obtained nor given in the context of power imbalance unless the defendant proves otherwise. This includes cases of inequality between the parties, for example, one of the parties has limited access to networks, resources and/or knowledge resulting in any legal, economic, social or other vulnerabilities.
The defendant can never obtain consent through threats, force or other forms of coercion, abduction, fraud, deception, the abuse of power or a position of vulnerability or dependency. Consent cannot be obtained through insistence, manipulation, emotional threats, blackmail, or making the victim feel guilty for an action and presenting sexual behaviour as a way of compensation. Within this context, coercion is defined as intimidation, compulsion, domination, or control. Deception or false pretence may include but is not limited to evoking, taking advantage of and failing to correct the victim’s misunderstanding about the defendant’s identity or their situation, or the nature of the act.
It will be assumed that consent cannot be given through silence or inactivity unless the defendant proves otherwise. It cannot be given by someone who is unable to exercise free will, including being in a state of unconsciousness, intoxication, sleep, illness, bodily injury or disability, which impedes the giving of such free consent. Everyone has the right to exercise their free will, bodily and mental integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics.
Here are reasons why we need this type of definition of consent:
Many laws already moved beyond the myth that sexual violence always requires the use of force or the breaking of resistance to be identified as rape. They now range from ‘no means no’ (Germany) to ‘yes means yes’ (Sweden) approaches.
Though, even in a case where the victim has agreed or disagreed there may not have consented.
Consent does not only refer to a person’s verbal agreement. It also takes into account interpersonal relationship dynamics that are often marked by a distinct power imbalance. Further, the specific context in which the sexual assault took place is of concern.
A person who wants to engage another person in a sexual touch has the responsibility to ensure that they have that person’s full and informed consent to be touched. Relying on assumptions, guesses, hopes, past consent, rape myths, or prejudices is not consistent with the principle of full and informed consent. A sexual touch is only justified if a person gives consent.
Consent can only validly be provided by a person who has the capacity to give consent. Capacity is time, place and situation-specific. Consent to engage in a sexual activity at one point in time does not equal consent a later time. A person may lack capacity if they are unable to make an informed decision for themselves, be that as a result of intoxication, fear, mistake or mental impairment. A person may be conscious but still lack capacity.
A prosecutor should not be required to prove the complainant’s lack of consent. Rather, the defendant must show to be sure for the sexual touch to have been justified.
So, for example, rather than asking “was the complainant so afraid their consent is not valid” we should ask “was the defendant justified in touching the complainant, given they knew the complainant was afraid”. As the defendant can not take a frightened person’s consent as a clear indicator of full and informed consent, they can not be justified in acting on the basis of that consent.
The key question in criminal proceedings should be whether the defendant has shown respect for the complainant’s sexual autonomy by giving them the time, space, freedom from coercion, and information they need to make their decision.
A defendant who has not asked the complainant whether they consent; has misled them or failed to disclose information that the complainant requires to make an informed decision; or has pressured them, then the law should find that they have demonstrated an offence due to lack of respect for the complainant’s sexual autonomy. A defendant who knows the complainant is intoxicated at the time or has been or can not rely on that complainant’s consent as a defence.
Social and cultural norms and attitudes have fueled an environment that accepts and normalizes sexual violence and creates a sense, real or perceived, of impunity for perpetrators of that violence: This is rape culture.
Why should anyone’s safety be compromised because of nationality or location?
A global standard definition of consent in accordance to the proposed text can ensure people’s rights to safety everywhere. If everyone is aware of their fundamental right to experience consensual behaviour they can demand justice.
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