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Push to enshrine consent in rape laws encounters obstacles in Europe

Lack of consent is increasingly seen as a core element of rape. But less than a third of European countries have made it law, despite high-profile cases around the issue. Why is change so slow going?

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People take part in a protest in Malaga, Spain, on April 26, after a Spanish court condemned five men accused of the group rape of an 18-year-old woman. The placard reads: 'The wolf pack are us.' The men described themselves as 'the wolf pack' in communications with each other.

Jon Nazca/Reuters

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She was just 11. And when it was over, she called her mom and told her that a man she met in the park took her back to his apartment and had sex with her. Her mother called the police to report rape.

But when the case went on trial, the perpetrator initially only faced charges of sexual abuse – a misdemeanor – because the girl had not been subjected to “threat, violence, surprise, or constraint.” One of the four elements is necessary for a rape conviction in France, even for minors.

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The case went public just as the sex assault claims came showering down on Hollywood mogul Harvey Weinstein, and France, like much of the West, was in the throes of the #MeToo movement. Many in France were outraged. President Emmanuel Macron promised to set a minimum age of consent, putting France in line with the norm in many European countries.

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And yet, as France’s new bill intended to clamp down on sexual violence heads to the Senate in July, the text adopted by the National Assembly in May ditched plans to set a legal minimum age of consent, which would have been 15. Victims of rape, even at age 11, must still prove an element of threat, violence, surprise, or constraint.

Nearly 180,000 people have signed an online petition to urge Mr. Macron to reconsider, taking what they see as the only logical step in a post-#MeToo era. But France is not alone in debating how to stop rape and whether consent is the right tool to try and clamp down. While Sweden just passed a new law in May that redefines sex without consent as rape, less than a third of European countries have such “consent laws” on the books.

For feminists, this is a sign of how patriarchal – and outdated – justice systems remain in much of the West. And many argue that laws on consent can only go so far if the deeper issues of machismo and gender inequality are left unaddressed. For the biggest skeptics, consent laws can be counterproductive, resulting in more “he said/she said” testimony that is difficult to prove and vulnerable to a judge's interpretation.

“The response to all this isn’t by criminal law,” says Pierre-Jérôme Delage, senior lecturer in criminal law at the University of Caen. “The solution is through education. If we really want mentalities and behaviors to change, laws can help a little, but it’s through education that things will evolve.”

'If there is not consent, it's an act of violence'

Sweden is now the tenth country of 33 in Europe to rewrite legislation to define rape on the basis of the absence of consent, according to Amnesty International. It joins Germany, Ireland, all four nations of the United Kingdom, Belgium, Iceland, and Cyprus to have followed Council of Europe recommendations to include consent-based laws on sexual violence. Some US states, like California and Florida, have affirmative consent laws, too.

With the highest rate of registered rape in Europe, due in part to the way it is tallied and how frequently it is reported, Sweden’s debate about rape has been at the center of politics. And the affirmative consent bill in Sweden (expected to go into force on July 1) is seen as a response to the pressure mounting under #MeToo.

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Anna Błuś, women’s rights researcher for Europe at Amnesty International, says such laws respond to the reality of sexual violence and tackle perceptions that it’s up to women to protect themselves from rape. In a 2014 study in the European Union, 9 million women reported having been raped at age 15 or older. Many of them don’t resist, often paralyzed by fear or in fear for their lives. “Swedish law goes beyond ‘No means no,’” says Ms. Błuś. “It should be about whether there was a yes. Silence or lack of no does not mean a yes.”

Stina Holmberg, senior researcher at Sweden’s National Council for Crime Prevention, agrees the new law sends a powerful message to men “to be careful, don’t take anything for granted.” Yet she says it also raises new questions about what consent is. She doubts it will lead to more rape reporting, or to more convictions. “Because these are very intimate situations, it’s difficult to legally regulate them,” she says.

In Spain, many believe a Swedish-style consent law could have made the difference in a verdict in an assault case in April that has generated widespread protests.

The case dates back to 2016, on the sidelines of the “Running of the Bulls” festival in Pamplona. Five men led an 18-year-old to a basement and each had sex with her. They filmed it, showing her with eyes closed.

The five men were handed nine years in prison each for sexual abuse, because the judges ruled the girl didn’t consent. But they didn’t receive the 20-plus years they may have if their actions had been ruled gang rape, because the judges said there had been no intimidation or violence, the Spanish legal definition of rape. “Spanish society didn’t realize that to be assaulted sexually, without consent, that isn’t considered violence,” says Irantzu Varela, a feminist activist in Bilbao. “So now our fight is that the law changes. If there is not consent, it’s an act of violence.”

Symbolic politics?

Critics of consent laws, however, see in them a quick political fix that could have unintended consequences.

The Norwegian parliament debated a consent law this spring but rejected the proposal. Tereza Kuldová, a social anthropologist and researcher at the University of Oslo, says that judges argued that the burden of proof would remain the same, while the law would increase evidence that pits one’s word against another’s. She dismisses Sweden’s new consent law as “symbolic politics” and argues that it makes men guilty before proven innocent.

But in that argument, common among skeptics, many feminists see parallels to the backlash against #MeToo, which cast doubt on women’s stories in the name of concerns about harming innocent men. “It shows that the primary thought in society is that women are making up these stories, even when it comes to young girls,” says Fatima Benomar, spokesperson for the feminist group Les Effronté-es, referring to the consent debate for minors in France.

The case of the 11-year-old was re-opened as a rape case, a victory for the victim, and some of France’s new sexual assault bill has been praised, including punishing catcalling on the streets. But the debate over consent remains a live one.

In a Eurobarometer poll from 2016, 27 percent of respondents said sexual intercourse without consent could be justified in certain situations – showing how far attitudes lag behind the laws.

Błuś agrees that consent laws might in themselves not increase rape convictions, but they could help shift societal attitudes. “If things follow from such legislative changes, if they filter down to the broader society and are accompanied with different measures, like training for police or judges, then I think these laws have the potential to prevent rapes.”