Talk:Sexual consent in law

Pennsylvania

It may be possible that Pennsylvania's 'Section 3121. Rape.' and 'Section 3124.1. Sexual assault' / 'Section 3125. Aggravated indecent assault' / 'Section 3126. Indecent Assault' together represent a 'two-tiered approach', and that this has played a role in the Berkowitz 1994 case mentioned by Rubenfeld 2013. This could be the source of confusion/contention. It's based on this difference that the initial rape conviction (per section 3121) was changed to an indecent assault conviction (per section 3126) at retrial. But it's difficult to tell, in part because Pennsylvania introduced several amendments to all these laws in 1995, just after the trial. We need good secondary reliable sources on the case and amendments, because primary sources don't suffice, and Rubenfeld doesn't provide much context. Cheers, Nederlandse Leeuw (talk) 00:42, 15 September 2022 (UTC)

2021 UN VAW Special Rapporteur report list of countries

On 19 April 2021, the United Nations Special Rapporteur on Violence Against Women, Dubravka Šimonović, on page 13 (paragraph 74, footnote 59) listed the following States as having 'definitions of rape based on lack of consent': 'Afghanistan, Albania, Argentina, Bahamas, Bangladesh, Belgium, Bolivia (Plurinational State of), Bulgaria, Burkina Faso, Cambodia, Cameroon, Canada, Colombia, Croatia, Cyprus, Democratic People’s Republic of Korea, Denmark, Egypt, Eswatini, Ethiopia, France, Georgia, Germany, Ghana, Greece, Guatemala, Hungary, Iceland, India, Indonesia, Iraq, Ireland, Jordan, Kazakhstan, Kenya, Lithuania, Luxembourg, Madagascar, Maldives, Mali, Malta, Mauritius, Monaco, Montenegro, Morocco, Myanmar, Nepal, Nicaragua, Nigeria, Oman, Pakistan, Peru, Philippines, Poland, Portugal, Romania, Rwanda, Samoa, Sierra Leone, Somalia, South Africa, South Sudan, Sri Lanka, Sweden, Syrian Arab Republic, Togo, Tunisia, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania and Zimbabwe'. Dubravka Šimonović (19 April 2021). "Rape as a grave, systematic and widespread human rights violation, a crime and a manifestation of gender-based violence against women and girls, and its prevention" (PDF). documents-dds-ny.un.org. Retrieved 15 September 2022. Cambodia was later scrapped from the list upon a review of the translation of its rape legislation, which turned out to be not consent-based. "OHCHR | Rape as a grave and systematic human rights violation and gender-based violence against women". OHCHR. 2021. Retrieved 15 September 2022.

Well, honestly, that's not the only country that should be scrapped from this list in my view. Just starting with Afghanistan, Albania, and Argentina, I've already put them in the coercion-based category based on the legal provisions I have been able to find. Afghan law in 2017 only had provisions based on 'using force, means of threat, or using a victim's physical or mental inability to express consent or lack of consent (Male or Female), or giving anesthetic substances or other mental affecting drugs'; that means there is no freely given consent, but only the law determining who cannot consent, and for everyone else only coercion is relevant. Moreover, the Shia Personal Status Law legalises marital rape. As for Albania, GREVIO in November 2017 already concluded 'Albania's provision on rape is thus a force-based definition and falls short of the [Istanbul] Convention's requirements.' I don't know which Argentine laws Šimonović is referring to, but the two I have found - Article 2 of Law 25.087 (1999) and Article 5 of Law 26.485 (Law of Integral Protection of Women, 2009) - are coercion-based, and do not mention consent.

Bulgaria is a country I had not reviewed yet, but https://www.lex.bg/laws/ldoc/1589654529 only mentions 'consent' (съгласие) in relation to sexual violence once, namely (using DeepL for a machine translation of the Bulgarian text):

Чл. 152. (1) [Art. 152. (1)]

Който се съвъкупи с лице от женски пол: [Whoever has intercourse with a person of the female sex:]

1. лишено от възможност за самоотбрана, и то без негово съгласие; [1. deprived of the possibility of self-defence, and that without her consent;] - emphasis by me

2. като го принуди към това със сила или заплашване; [2. by compelling her to do so by force or intimidation;]

3. като го приведе в безпомощно състояние, [3. by rendering her helpless,]

се наказва за изнасилване с лишаване от свобода от две до осем години. [shall be punished for rape by imprisonment from two to eight years.]

Only the 1st scenario mentions consent, and in inextricable conjunction with '[being] deprived of the possibility of self-defence'. What does that mean? The law expects 'a person of the female sex' to engage in self-defence if given the possibility. No resistance = no objection to sexual intercourse, the law reasons. That is a coercion-based assumption. How can a woman be deprived from self-defence with her consent, you might ask? Well, if she likes bondage and gets excited from being handcuffed by her partner, for example. Bulgarian law reasons that if a woman asks/permits her partner to handcuff her, that means she is giving consent to sexual intercourse, and with a bit of extra context, that is probably correct (and I hope she'll have fun). However, in order to establish whether she can freely give consent, we need to remove the handcuffs and her request/permission to her partner to handcuff her. Article 152 then assumes that she is capable of self-defence (1), unless the other person uses 'force or intimidation' (2), or does anything to 'render her helpless' (3). There is a whole range of scenarios in which the other person has to do nothing at all, but in which she is nevertheless incapable of self-defence, e.g. rape paralysis, sleep, unconsciousness etc. let alone giving consent or rejecting the other person's advances. There is no provision in this article that makes silence and inaction (i.e. a lack of consent) on the woman's part the other person a rapist for proceeding to have intercourse with her. The very requirement of resistance/self-defence is a hallmark of the coercion-based model. Just because 'consent' is mentioned in a BDSM-like scenario doesn't mean Bulgarian law on sexual violence is suddenly consent-based. It is not. Moreover, there is no criminalisation of rape of men or non-binary people in this law, which only deals with female complainants/victims/survivors, and all other sex crimes don't mention consent, so even if it were consent-based, it would only count for half the population. (In some jurisdictions, "rape" is - for historic-semantic reasons - also considered a crime that can only be committed against women, but when committed against men without consent it can still be punished as 'sexual assault'. Bulgaria doesn't have that option either).

I could go on, but I think my point is pretty clear already. I'm afraid Šimonović hasn't done her work very carefully. She doesn't provide an analysis of why these countries supposedly have 'definitions of rape based on lack of consent', she just lists them, so there's no way to check her methodology. 'Incapable of consenting' scenarios are readily compatible with coercion-based laws, and do not suddenly make them consent-based just because the word 'consent' shows up somewhere in the legal text. Therefore, I regard this list as an unreliable source of information. The rest of the report may still be valuable, but this list is not. Nederlandse Leeuw (talk) 17:23, 15 September 2022 (UTC)

This article needs to be updated

-Finland already changed its definiton to consent-based: https://oikeusministerio.fi/en/sexualoffenceslaw#:~:text=New%20legislation%20on%20sexual%20offences&text=The%20new%20legislation%20on%20sexual,is%20now%20based%20on%20consent. -Switzerland and Czechia too: https://lenews.ch/2023/06/02/switzerland-moves-close-to-changing-definition-of-rape/ https://www.euractiv.com/section/politics/news/czechias-legal-definition-of-rape-now-includes-no-means-no-principle/

And most importantly, this article doesn't differ whether the consent-based law is a no means no law (such as Germany or recently Switzerland and Czechia) or an affirmative/yes means yes law (such as Spain, Sweden or Finland) Marko8726 (talk) 12:38, 2 January 2024 (UTC)

Pinging @Nederlandse Leeuw:, since they contributed the most to this article. Marko8726 (talk) 09:20, 4 January 2024 (UTC)

@Marko8726 Thanks for the ping! I'll update the article soon, and the maps later. NLeeuw (talk) 14:34, 5 January 2024 (UTC)

I've updated Finland now. There is news from Switzerland, although it is unclear whether the new law has been enacted yet, and whether it is coercion-based or not. https://www.swissinfo.ch/eng/politics/swiss-parliament-agrees-on-new-legal-definition-of-rape/48559030 seems to say it's a "no means no" law, while https://www.amnesty.org/en/latest/news/2023/06/switzerland-amendment-to-rape-law-is-historic-victory-for-human-rights/ says it's an "only yes means yes" law. I'll have to read things carefully, both the legal texts and the interpretations, before Switzerland can be updated as well. NLeeuw (talk) 16:39, 5 January 2024 (UTC)

https://www.reneweuropegroup.eu/news/2023-11-23/non-consensual-sex-must-be-defined-as-as-rape

Apparently there is also a process going on at the EU level to develop consent-based legislation. Most EU states have ratified the Istanbul Convention, all of them have signed it, and the EU Commission also signed it in 2017 (although has not ratified it yet), so this would be in the line of expectation, also given previous rulings of the European Court of Human Rights which is binding on all EU member states that are also CoE member states. Perhaps this requires a separate subsection somewhere; just like with the United States there could be different legislation at different levels of administration, which will matter for application. Suppose this new EU law could overrule member state legislation, then we might eventually see a shift towards consent-based legislation at the state level throughout the Union. NLeeuw (talk) 16:50, 5 January 2024 (UTC)

https://www.rte.ie/news/politics/2024/0103/1424510-gender-based-violence/

"The European Union's first directive on combatting violence against women has hit a roadblock with a number of countries, including Ireland, unable to agree on a legal definition of rape.

Under the proposed text, approved by the European Parliament, the crime of rape is based on lack of consent.

However, not all member states agree on this definition, and so rape risks not being included in the directive on combatting violence against women. (...) At present, 12 members states are supporting the inclusion of a consent-based definition of rape in the directive. Ten states are against the proposal and the remaining countries are undecided.

The directive seeks to enhance and harmonise rules on combatting violence against women across the European Union, so that citizens have the same rights wherever they are in the bloc."

Well, that's exactly the scenario I described above. I'll add some text on this later on. NLeeuw (talk) 16:57, 5 January 2024 (UTC)

https://www.srf.ch/news/schweiz/revision-des-sexualstrafrechts-vergewaltigung-neu-definiert-das-sind-die-folgen

This article brings a lot of clarity to the Swiss situation. Although it generally follows the "No means no" approach, "shock" or "freezing" (rape paralysis) has been defined as a circumstance that renders the other person legally incapable of consenting. This covers the primary concern of groups such as Amnesty, although I don't think we can quite say "The law now recognizes that all sex without consent is rape." Not really. It has just expanded the provisions of scenarios in which a person is legally automatically considered incapable of consenting. It must be said that statistically speaking, paralysis is absolutely by far the most common scenario in which sexual violence without coercion and without freely given or affirmative consent happens (some research suggests 70-75%), so automatically extending protection to people in that situation is quite significant. But the Swiss law still does not recognise freely given or affirmative consent. I do understand if campaigners are reasonably satisfied with the result as a major step forward, although it's not quite what they theoretically aimed for. I would indeed, as @Marko8726 said above, say that Switzerland still has a coercion-based model, although with very decent protections for those incapable-of-consenting scenarios when compared to most other coercion-based jurisdictions. (Compare Texas state law, which has stipulated no fewer than 12 incapable-of-consenting scenarios, but shock/freezing/paralysis is not one of them.) I'll have to read up on the Czech law as well. NLeeuw (talk) 01:01, 6 January 2024 (UTC)

I've read the Euractiv article and worked it into the Wiki. I again agree with Marko's interpretation that Czechia's bill is coercion-based. Hopefully, I have been consistent throughout this article - as the sources usually are as well - in calling a "no means no" approach "coercion-based", and an "only yes means yes" approach "consent-based". "Consent-based" means that the law recognises freely given or affirmative consent to each individual human being; "coercion-based" means the law doesn't. Both in consent-based and coercion-based legislation, you can sometimes find incapable-of-consenting scenarios, but they are the exception to the rule (i.e. the basis). The fact that a country like Switzerland or a state like Texas has a long list of incapable-of-consenting scenarios doesn't mean that their legislation is therefore consent-based; it means that the law has decided in which scenarios an individual human being couldn't possibly have given consent, therefore, they haven't if they have ever found themselves in those specified scenarios (otherwise, they still need to demonstrate the suspect used coercion, which is the basis, while the incapable-of-consenting scenarios are the exception). The problem is that any scenarios legislators failed to imagine and wrote into the law thus remain unpunishable, as the individual human being is given no agency to delimit their own boundaries wherever the law hasn't done it for them. (There are pros and cons to both approaches, to be sure.) NLeeuw (talk) 02:18, 6 January 2024 (UTC)

I agree, it's somewhat unclear whether the "no means no" law is coercion or consent based. According to the Amnesty article you've posted, it also counts no means no/sex against the will of another person as consent-based. Germany is also labelled in this article as consent-based, although they also have a "no means no" law. Marko8726 (talk) 22:04, 6 January 2024 (UTC)

@Marko8726 Exactly. In the cases of Switzerland and Germany, I disagree with Amnesty's interpretation that the 2016 German law and 2023 Swiss law should be called "consent-based". Both are "no means no" laws which assume everyone consents to sex unless they say or do something, or some other circumstance make them incapable of consenting. The 2018 Amnesty report does point out that this "problematic" and not how they'd like the legislation to be:

In Germany, the legal definition of rape was changed to a consent-based one < I disagree with that part in November 2016. The requirement for the victim to physically resist in order for rape to be proven was also repealed.[55] Indeed, as noted, for instance in the 2017 Equality Now report, “law should never interpret a woman’s lack of physical resistance to sexual violence as acquiescence in that violence.”[56] The change has been dubbed a “no means no” law and now provides that both physical and verbal responses from the victim could lead to proving the lack of consent. The amended legislation, however, does not focus on the absence of consent as such but on the victim’s expression of their refusal to engage in the sexual act. The “no means no” model is problematic as it implies the existence of consent by default, in every situation where there is no express refusal to engage in a sexual act, as opposed to interpreting consent as active participation and/or affirmative expression. According to this model, women consent to sex perpetually, unless they state otherwise.

"Stating otherwise" just means verbal resistance, therefore this law is coercion-based. That's why I've coloured Germany green ("coercion-based, marital rape illegal") rather than blue ("consent-based, marital rape illegal") on the maps. These amendments did increase the options of resistance, and they expanded the list of incapable-of-consenting scenarios, but did not recognise people's freely given or affirmative consent. Silence is consent under these laws.

In consent-based jurisdictions such as Ireland, England and Wales, Scotland, Belgium, Luxembourg, Austria, Croatia, Greece, Finland, Spain, Denmark, Ukraine, Montenegro, Australia, Canada, South Africa etc. silence is never consent, and that could make all the difference for a survivor in court. NLeeuw (talk) 00:53, 7 January 2024 (UTC)

PS: Blimey, I see I did paint Germany blue instead green; it should be the other way around. I'll have to correct it then. I cannot agree with the idea that a legal requirement for verbal resistance on the part of the other person (the (would-be) victim/survivor) should be called a 'consent-based' law, especially when it is acknowledged that it's a "no means no" law and that a requirement for verbal resistance is "problematic" for said reasons. NLeeuw (talk) 01:07, 7 January 2024 (UTC)

Switzerlands law will be in force on July 1, 2024. It will be an "extended" No means no where shock/freezing also counts as a "no". Marko8726 (talk) 13:31, 10 January 2024 (UTC)

It seems like a consent-based definition is excluded from the new EU law on violence against women: https://www.euronews.com/my-europe/2024/02/07/eu-agrees-first-ever-law-on-violence-against-women-but-rape-is-not-included

https://www.france24.com/en/live-news/20240206-eu-agrees-first-law-combatting-violence-against-women Marko8726 (talk) 12:19, 14 February 2024 (UTC)