Strides towards criminalising non-consensual sexual activity and making consent mandatory in law have been made all around the world
There have been advances on defining consent all around the world, whether in the GDPR (General Data Protection Regulation) in the EU, the New York Bill in the US, the new Criminal Code of the Republic of Malta or the recent developments in Spain.
We want to add to these advances and advocate for a harmonised global approach, in line with the Istanbul Convention focusing on Article 36, and with the European Commission’s proposed Directive, to criminalise rape based on the lack of consent.
The legal definition of consent was presented at the European Commission Representation in Berlin, supporting their proposed directive to criminalise rape based on the lack of consent. The discussion revolved around the creation of a consent culture based on the importance of sexual and social consent in Europe.
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, and open communication. Consent must be obtained for each sexual act between the parties and can be withdrawn at any time. It must be obtained for sexual activity in the digital realm to ensure the right to privacy, confidentiality, and non-defamation. It 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, when 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, 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 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 impede 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 have 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.
Additionally, the victim’s agreement does not always equal consent.
Consent does not only refer to a person’s verbal agreement. One’s agreement does not always equate consent. Interpersonal relationship dynamics that are often marked by a distinct power imbalance, as well as the specific context in which the sexual assault took place, must also be considered.
Anyone who wants to engage another person in sexual touch has the responsibility to ensure that they have their 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. 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 it, bearing in mind that capacity is time, place and situation-specific. Consent to engage in sexual activity at a given point in time does not equal consent at a later time. A person may lack capacity if they are unable to make an informed decision for themselves, whether 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, it is the defendant who should prove that the sexual touch was legitimate.
For example, instead of asking: “was the complainant so afraid that their consent was not valid?”, we should ask “was the defendant justified in touching the complainant, given that their knowledge that the complainant was afraid”. As a frightened person’s consent cannot be taken as a clear indicator of full and informed consent, the defendant’s actions cannot be justified based on 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 needed to make their decision.
The law should find that an offence was committed by the lack of respect for the complainant’s sexual autonomy if the defendant failed to: ask the complainant whether they consented, misled them, or failed to disclose information required for the complainant to make an informed decision, or pressured them. A defendant who knew the complainant was intoxicated at the time cannot rely on that complainant’s consent as a defense.
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 the perpetrators. This is rape culture.
Why should anyone’s safety be compromised because of their nationality or location?
A global standard definition of consent in accordance with 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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