“Sex without consent is rape”. This statement sounds self-evident. And yet our laws and our lived experiences show that it is still far from being universally recognized and understood.
On two recent occasions, watching fiction with friends - Game of Thrones and Basic Instinct - where scenes of rape were depicted, we found ourselves debating whether these were in fact rapes. To me, it was very clear that the female characters on screen did not consent to sex. But since in both scenes, they knew the men, and had previous relationships with them, others felt that this was somehow enough to downplay these situations and question whether they did constitute rape.
This brought home for me, once again, how far we still have to go. If my friends, who are pretty committed to gender equality, cannot identify rape in fiction, then what about broader society, and most importantly what about real life?
A societal problem
Polls reflect this alarming reality. More than a quarter of Europeans believe that sexual violence can be excused: 27% said that "sexual intercourse without consent can be justifiable" in certain situations, most such circumstances having to do with the behaviour of the victim.
When surveys don’t use the word “rape” but factually describe situations that constitute rape, they expose how pervasive it is: a poll in France revealed that out of almost 100 000 female respondents, more than half (53.2%) reported having experienced non-consensual penetrative sex with one or more partners. On the other side of the same coin, recently 63 male students out of 554 surveyed in the UK admitted to having committed 251 sexual assaults, rapes, and other coercive and unwanted incidents. The study also showed that these perpetrators were significantly more likely to believe that women are to blame for being assaulted, and to hold hostile views about women.
We are still collectively terrible at identifying, and condemning, sexual violence. It’s not a mystery why. We live in a society which blames victims/survivors, in order to let violent men off the hook: that is the primary function of rape culture. Laws are the result of the patriarchal culture we live in and reflect this toxic mindset. We need urgent and concrete actions to address sexual violence on both fronts: to change legislation, and to change mentalities.
Reflected in legislation
In Europe, shockingly, most countries do not criminalise sex without consent. Their laws usually require the use of force or coercion as an additional factor in order for a non-consensual act to be considered as sexual violence. According to a review of the legislation of European countries done by Amnesty International in 2020, only 12 European countries out of 31 analysed had laws that define rape as sex without consent.
This is despite the fact that most countries have ratified the Council of Europe’s Istanbul Convention, the first legally binding comprehensive instrument to prevent and combat violence against women and domestic violence. The Convention clearly states that engaging in non-consensual sexual activity constitutes sexual violence. It further says that “consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances”. How is it possible that so many countries ratified this landmark treaty, yet have not changed their legislation to bring it in line with its binding requirements?
Inadequate laws on sexual violence have a devastating impact on victims/survivors. They encourage victim blaming, excuse violence, and fail to prosecute rapists. Instead of looking for proof that the perpetrator used enough force or assessing whether the victim/survivor put up enough resistance, the legal system should focus on whether the victim/survivor explicitly consented to sex. And if not, that should be enough to constitute sexual violence. “Yes means Yes” laws represent a necessary change of paradigm to protect victims/survivors more effectively.
The road ahead
In June 2021, in a most welcome development only made possible by intense mobilization by women’s rights NGOs, Slovenia changed its law on sexual violence to adopt a consent-based legislative proposal. Spain is also currently reviewing its legislation on sexual violence, to adopt a consent-based model. The “Only Yes Means Yes” bill follows the shocking ‘La Manada’ case, where a group of men were initially found guilty of the lesser offence of sexual abuse instead of rape, because the prosecution could not prove that they used force against the victim/survivor.
Other countries must follow suit, urgently. All European countries must ratify and implement the Istanbul Convention, including by changing their legislation to comply with its legal definition of sexual violence.
Changing laws and mentalities goes hand in hand: putting an end to rape culture will require not just a change of legislation, but profound societal transformation too. Education is key in that regard. Relationship sexuality education, which teaches children and young people about consent in intimate relationships, is essential.
The European Commission is now working on a new legislative proposal to prevent and combat violence against women. This Directive should tackle the issue of sexual violence, and unequivocally adopt the definition of the Istanbul Convention, namely that sex without consent is rape. The Directive should also include comprehensive relationship and sex education as a key prevention measure, to improve young people’s understanding of consent, enable them to identify sexual violence, discourage them from perpetrating it, and empower them to report it.