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Anything less than yes is rape: the campaign for a consent-based rape law in Sweden

The absence of a ‘no’ is not an implicit yes. This is the overarching principle of Sweden's 2018 ‘consent law’ aimed at combating GBV. We discussed the law and consent culture with activist Demet Ergun.

The absence of a ‘no’ is not an implicit yes. This is the overarching principle of a long-fought Swedish ‘consent law’ aimed at dismantling the ‘no means no’ framework; a system rooted in the idea that a person needed to explicitly resist for it to constitute rape.

Women’s rights activist Demet Ergun is hopeful the law, which came into force in 2018, will facilitate understanding of consent but adds dryly that ‘People don’t pay enough attention to the fact that sex should be something done ‘with’ someone, not ‘to’ them.’ As President of the women’s rights coalition Fatta, Demet knows all too well the time-worn path to legislative change. It was Fatta that spearheaded the campaign to reform Swedish rape laws.

The movement for change was sparked when the acquittal of three 19-year-old men accused of raping a 15-year-old* girl with a glass bottle in 2013 provoked mass protests. From the ashes of this horrifying rape case, feminist resistance rose up. Fed up with having women’s and girls’ experiences of sexual violence minimised by society and courts of law, the founders of what was to become Fatta began to gather together, collecting women’s stories and raising public awareness, before formally establishing the organisation.

Under the new law, rape survivors no longer have to prove there was threat, force, or that they were taken advantage of in a vulnerable situation. The law states that consent can never be freely given by people who are intoxicated, incapacitated, under duress, or in a situation of unequal power dynamics or dependency, such as sex between a teacher and their student.

After the law was implemented, Sweden saw rape conviction rates rise by 75% between 2019 and 2020. Four years ago, many of these cases wouldn’t legally have constituted rape; a shocking indictment of just how many survivors of sexual violence have never received justice. Gender-based violence expertise or training is still not required to be a juror in a rape trial, which Demet says must change.

Sweden’s consent law also introduced a new, lesser offence of ‘negligent rape’ to make it possible to get justice for survivors in cases where courts found that while the intent to knowingly disregard the victim’s lack of consent could not be proven, the perpetrator had failed to clarify whether or not consent was being given, and therefore should have stopped and askedThe law’s acknowledgment that rape can still happen in the absence of force or threat is important to dismantling the myth that most rape is perpetrated by strangers. It also rejects the notion that prior consent is ‘forever’ consent and includes situations in which the victim ‘freezes’ or is taken by surprise and does not have time to react.

Demet explains that the presumption of innocence until proven guilty hasn’t been replaced, but now the court has to decide whether or not consent was given: ‘Previously the victim had to prove that there was a strong indication of resistance. Now the accused has to show they received consent and how this was interpreted. A key difference is that physical evidence is no longer required. This is important because of the 'frozen fight' situation; often people can’t fight off perpetrators or control how their body reacts.’

Opponents of the law argue consent can’t be proven, but sexual violence campaigners insist that it can be expressed clearly either verbally or through nonverbal cues, such as positive body language like smiling, maintaining eye contact, and nodding. We have been taught that sex is about setting a silent ambiance and that talking can ‘break the mood’. However, questions can facilitate a positive sexual experience in myriad ways from creating comfort to establishing intimacy.

"We need to teach people from a young age what consent is about and that it isn’t just about sex. A consent culture is so much more than that."

Demet Ergun

Swedish activist Demet Ergun

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Subject

Sexual and Gender-Based Violence, Comprehensive Sex Education

Education eradicates inequalities

For Demet, relying on the law isn’t enough. Educating young people about consent in a variety of everyday situations can contribute to building a more just society. She says boys and men may take what they believe they are entitled to because society has taught them it is their right to do so: ‘We need to teach people from a young age what consent is about and that it isn’t just about sex. A consent culture is so much more than that. It’s about checking in on your spouse when you come home or teaching children to share.’

Fatta has collaborated on a children’s book focused on consent and bodily integrity. Teaching children to read signals on verbal consent and body language is vital, Demet says: ‘When you have two kids tickling each other, they can’t help laughing. It is a natural reaction but it’s about making sure the other person is ok with you tickling them.’

Demet is confident that change can happen but is in disbelief that the system hasn’t changed until now: ‘Young people are still receiving the same sexuality education that I had, that my parents had and that my niece and nephew had. But they need to learn about determining the difference between a good relationship and a bad one. How do we learn to read consent and give consent? We haven’t learnt to stand up for ourselves. That means learning how to say yes and knowing what we want, as well as accepting a no.'

Demet says we need to ask men for help rather than blaming them. The activist argues that we can’t blame boys for rape culture nor can we speak to them the same way as we talk to politicians. It’s also about changing the way men view sex and encouraging men to talk to their friends: ‘Most men know that they have at some point stepped out of line, flirted when someone didn’t want to be flirted with, gone in for a hug when it wasn’t wanted. We are all to blame that we don’t have the consent culture we want.’

Having a consent culture needs to be part of all aspects of society. For Demet, it’s also about looking at our influencers, both online and on TV: ‘There have been clear cut cases of rape on reality TV shows. This is what young adults watch and think is acceptable behaviour. Participants need to be trained on consent.’

Damaging and discriminatory attitudes towards women and sexual violence continue to persist but there is momentum for change. Demet says the approach needs to be intersectional and inclusive: ‘We won’t get there if we only focus on cis women. The percentages show us that 96% of people raped are women but a lot of people with different gender identities, such as transgender and non-binary people, are also affected.

For Demet, replacing rape culture with consent culture is done through education and talking about it: ‘A law alone can’t change society. But it can create a new norm about what should and shouldn’t be done. It is through cultural change and the way in which we handle cases that we can reduce rape in the future.’

The age of consent in Sweden is 15, so the victim’s age did not provide automatic grounds for a rape conviction.

Check out our #SafeFromHarm campaign to find out more about the legal and policy measures IPPF EN wants to see prioritised in the fight againt gender-based violence in the European Union.

 

Interview by Dearbhla Crosse. Photo credit Demet Ergun.