Sexual consent in law

Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether or not the alleged victim had freely given consent, and whether or not they were deemed to be capable of giving consent, can determine whether the alleged perpetrator is guilty of rape, sexual assault or some other form of sexual misconduct.

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Although many jurisdictions do not define what consent is, almost all jurisdictions in the world have determined an age of consent before which children are deemed incapable of consenting to sexual activity; engaging in sex with them thus constitutes statutory rape (see laws regarding child sexual abuse). Many also stipulate conditions under which adults are deemed incapable of consenting, such as being asleep or unconscious, intoxicated by alcohol or another drug, mentally or physically disabled, or deceived as to the nature of the act or the identity of the alleged perpetrator (rape by deception). Most disagreement is on whether rape legislation for otherwise healthy adults capable of consenting should be based on them not having given (affirmative) consent to having sex, or being based on them being forced through violence or threats to having sex. The 2000s and 2010s have seen a shift in favour of consent-based legislation, which was increasingly considered as providing better guarantees for the legal protection of (potential) victims of sexual violence.

See also: Consent (criminal law)

In legal theory, there are two main models in legislation against rape and other forms of sexual violence:

  1. The coercion-based model 'requires that the sexual act was done by coercion, violence, physical force or threat of violence or physical force in order for the act to amount to rape';[1]
  2. The consent-based model 'requires that for the act to qualify as rape there must be a sexual act that the other one did not consent to'.[1]

The primary advantage of the coercion-based model is that it makes it difficult to make a false accusation of rape or assault, and thus provides decent protection to the legal position and social reputation of suspects who are innocent.[1] This line of reasoning stems from a time (dating at least as far back as the 18th century) when sex was regarded as a private matter that the state and society should mostly not interfere with, and concerns about sexual violence were mostly limited to male-on-female rape, which was firstly regarded as an offence to public morality, especially the female victim's family (her father, husband or master).[1] In the decades of the later 20th and early 21st century, the focus of sexual violence has shifted towards individual sexual autonomy, the scope has broadened beyond the act of intercourse, the set of potential victims and perpetrators has been expanded to include all genders, strangers as well as acquaintances and people close to the victims including intimate partners and even spouses, while social and legal attitudes have changed in favour of more active societal and state intervention in sexual violence and the attainment of justice.[1] Individuals and human rights organisations increasingly criticised the coercion-based model for a variety of reasons, such as the requirement for the victim to actively resist an assault (thereby failing to address cases where victims are unconscious, intoxicated, asleep or suffer from involuntary paralysis – also known as "freezing"[2] – due to fear or other state of helplessness, and thus unable to resist an assault) or not wear certain kinds of clothes to not 'provoke' an assault (shifting the responsibility for the crime from the perpetrator unto the victim), or the focus on physical violence (thereby failing to consider that a perpetrator sometimes needs to use little to no physical violence in order to conduct an assault, e.g. when the victim is unconscious, intoxicated, asleep or involuntarily paralysed; and also failing to address mental and psychological harm caused by rape and assault).[1] The consent-based model has been advocated as a better alternative for enhanced legal protection of victims, and to place a larger responsibility on potential perpetrators to actively verify or falsify before initiating sex whether a potential victim actually consents to initiating sex or not, and abstaining from it as long as they do not.[1]

International standards, definitions and jurisprudence

As of 2018, a consensus is emerging in international law that the consent-based model is to be preferred, stimulated by inter alia the CEDAW Committee,[3] the UN Handbook for Legislation on Violence against Women,[4] the International Criminal Court and the Istanbul Convention.[5]:8, 10–11 However, there were no internationally agreed upon legal definitions of what constitutes sexual consent; such definitions were absent in human rights instruments.[5]:10 Istanbul Convention Article 36 remarks that '[c]onsent must be given voluntarily as the result of the person's free will assessed in the context of the surrounding circumstances'.[5]:11 Rule 70 of the Rules of Procedure and Evidence (published in 2002) of the International Criminal Court (which rules on military conflicts between states) gives a summary of illegitimate inferrals of consent which defendants might try to use to claim they had consent:

Rule 70: Principles of evidence in cases of sexual violence

In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:

(a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent;
(b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent;
(c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;
(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.[6]:24–25
Participation in the Belém do Pará Convention, the Maputo Protocol and the Istanbul Convention combined.
  Signed and ratified
  Acceded or succeeded
  Only signed
  Not signed
  Not a member state of the AU, CoE or OAS[7]

In 2003, the European Court of Human Rights ordered all 47 Member states of the Council of Europe (CoE) to take a consent-based approach to cases of sexual violence on the grounds of Article 3 and Article 8 of the European Convention on Human Rights.[1] This was the result of its ruling in the M.C. v. Bulgaria case, namely: 'In accordance with contemporary standards and trends in that area, the Member States' positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.'[8]

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) was adopted by the African Union (AU) in 2003 (in effect since 2005), which stipulates that 'States Parties shall take appropriate and effective measures to enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public.' Thus, 'unwanted sex', separately from 'forced sex', was recognised as a form of violence against women that is to be effectively prohibited by all 55 member states.[9]

In the 2006 Miguel Castro-Castro Prison v. Peru case, applying to all 35 Member states of the Organization of American States (OAS), the Inter-American Court of Human Rights stated the following: 'The Court, following the line of international jurisprudence and taking into account that stated in the Convention to Prevent, Punish, and Eradicate Violence against Women [Belém do Pará Convention], considers that sexual violence consists of actions with a sexual nature committed with a person without their consent (...)'.[10]

The Council of Europe's 2011 Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) contains a consent-based definition of sexual violence in Article 36.[5]:6 This mandates all Parties that have ratified the convention to amend their legislation from a coercion-based to a consent-based model.[5]:9 Since the Istanbul Convention entered into force in August 2014, some Parties have fulfilled their obligation for sexual violence legal reform;[5]:9 as of April 2020, 26 Parties had yet to do so, while 12 signatories still needed to ratify the Convention first.[11] Belgium already had a consent-based definition since 1989, the Republic of Ireland already since 1981, with a further amendment passed in February 2017.[5]:10 The United Kingdom's four constituent countries England and Wales (one jurisdiction), Northern Ireland and Scotland separately introduced consent-based legislation in the 2000s[5]:11 despite the UK not having ratified the convention as of 2018.[5]:10 In 2013 and 2016 respectively, Croatia and Austria have introduced separate laws for sexual violence committed by coercion and sexual violence committed by lack of consent, treating the latter as a lesser offence with a lower maximum penalty.[5]:13

European overview of sexual violence legislation.
  Coercion-based legislation
  Coercion-based legislation; consent-based amendment pending
  Consent-based legislation
  Mixed legislation; rape without coercion considered a lesser crime

Istanbul Convention countries
  • 1981: Republic of Ireland (amendment in February 2017)[5]:11
  • 4 July 1989: Belgium. Article 375 (introduced on 4 July 1989): 'Rape is every act of sexual penetration of any nature and by any means, committed against a person who did not consent to it. Consent is especially absent when the act is forced by means of violence, coercion (threats, surprise) or deception or enabled by an inferiority/infirmity (Dutch text: onvolwaardigheid; French text: infirmité) or a physical or mental deficiency on the part of the victim.'[5]:9[12]
  • 2000s: United Kingdom's constituent countries:
  • 16 July 2011: Luxembourg. Article 375 states that 'any act of sexual penetration (...) upon a person who does not consent to it, especially through the use of violence or grave threats (...) constitutes rape'. Lack of consent thus defines the crime; coercion is not required, but should be taken into account if present.[13][5]:9
  • 18 June 2014: Turkey. Article 102 – (Amended on 18 June 2014 – By Article 58 of the Law no. 6545) defines sexual assault as 'Any person who violates the physical integrity of another person, by means of sexual conduct'.[law 1]:39 According to a 2018 GREVIO report on Turkey, this definition was consent-based, because paragraph 2 stipulates that 'the use of force might entail the additional liability for felonious injury. It is not, therefore, a constituent element of the offence of sexual violence.' Article 102 also recognises marital rape. GREVIO hailed this as a major improvement over the previous coercion-based law, but noted the need to reform ways to prosecute marital rape via means other than only the victim's complaint.[14]:77
  • November 2016: Germany[5]:10[15]
  • March 2018: Iceland[5]:9
  • May 2018: Sweden[5]:9
  • by October 2018: Montenegro[16]:45
  • 30 October 2020: Cyprus (amended/expanded). Article 144 of the Cypriot Penal Code, in force since independence in 1960, only criminalised vaginal sex with a woman without her consent, by violence or coercion, or by pretending to be a married woman's husband.[17] This formulation did not comply with the Istanbul Convention's standards to also protect men and LGBT people, and include other forms (attempted) nonconsensual sexual acts.[17][18] Therefore, the Parliament of Cyprus amended the Penal Code on 30 October 2020 by expanding the definition of rape and attempted rape, criminalising it in six different circumstances (article 146), and increasing the standard or maximum penalty for most of these sexual offences to life imprisonment.[18][19]
  • 1 January 2021: Denmark.[20] In April 2017, the Parliament of Denmark rejected a consent-based bill, citing lack of evidence that a consent-based definition was needed.[5]:9 Another attempt failed in November 2018, but a new bill similar to the Swedish example passed in May 2018 gained support in March 2019, and the new Danish government confirmed its intention to introduce such legislation in July 2019.[21] Finally on 17 December 2020, paragraphs 216 and 228 of the Danish Penal Code were amended with a consent-based rape provision, which made having intercourse with a person who did not consent punishable by up to 8 years imprisonment. The amendment, which doesn't apply to Greenland and the Faroe Islands, went into effect on 1 January 2021.[20][22]

Other countries
World overview of sexual violence legislation.
  Consent-based legislation; marital rape illegal
  Coercion-based legislation; marital rape illegal
  Consent-based legislation, but marital rape legal
  Coercion-based legislation, and marital rape legal
  Mixed legislation; rape without coercion considered a lesser crime; marital rape illegal
  Coercion-based on vaginal sex, consent-based on anal and oral sex; marital rape illegal
  • 1998: Tanzania. Section 5 of the 1998 Sexual Offences (Special Provisions) Act criminalises a male person having sex with a woman or girl without her consent, unless she is his wife (but if he and his wife are separated, it is criminal again).[law 2]
  • 20 May 2005: New Zealand. The Crimes Act 1961 was amended in 2005, with section 128 defining 'rape' as penetration by penis of someone's genitalia without their consent, and 'unlawful sexual connection' as any other sexual act without consent. Section 128A further stipulates in which scenarios a person is not capable of giving (genuine) consent.[23][24]
  • 21 July 2006: Kenya. The Sexual Offences Act, 2006 states that 'a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.' Section 3 stipulates that sexual penetration without consent, or with consent 'obtained by force or by means of threats or intimidation of any kind', constitutes rape.[25]
  • 14 December 2007: South Africa. The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 repealed the common law offences of rape and indecent assault and replaced them with the new expanded statutory offences of rape and sexual assault, applicable to all forms of sexual penetration or violation without consent, irrespective of gender. "Consent" is defined as 'voluntary or uncoerced agreement'.[26]
  • Australia: all six states, the Northern Territory and the Australian Capital Territory have consent-based laws against what they variously define as 'rape', 'sexual assault', or 'sexual intercourse/penetration without consent'.[27]
  • Bangladesh: Section 375 of the Bangladeshi Penal Code is almost identical to the Pakistan Penal Code, which in turn is derived from the same Section 375 in the Indian Penal Code. It states that 'a man is said to commit rape who has sexual intercourse with a woman (...) against her will' (1), 'without her consent' (2), when consent was obtained by coercion (3), when consent was obtained by identity deception (4), or when she was incapable of consenting due to her age being younger than 16 (5). However, unlike the Pakistan Penal Code, but similar to Indian Penal Code, marital rape of wives from age 13 is not criminalised (since sex within marriage is considered consensual by definition).[law 3]
  • Botswana. Although marital rape is not criminalised, since sex within marriage is considered consensual by definition,[28][29]:157 non-marital rape is defined as sexual penetration 'without the consent of such other person, or with such person's consent if the consent is obtained by force or means of threats or intimidation of any kind'.[30]
  • Canada. 'Assault' is defined in Section 265(1)(a): 'A person commits an assault when, without the consent of another person, he applies force intentionally to that other person, directly or indirectly'; Section 265(2) stipulates that this also applies to sexual assaults.[31] Consent is defined in Section 273.1(1) – as well as Section 153.1(2) – as 'the voluntary agreement of the complainant to engage in the sexual activity in question. Consent must be present at the time the sexual activity in question takes place.'[31] Sections 271, 272 and 273 criminalise 'Sexual assault', 'Sexual assault with a weapon' and 'Aggravated sexual assault', all three of which spouses may be charged with according to Section 278, thus explicitly criminalising spousal rape.[31] See Sexual assault § Canada for details.
  • Egypt. Although a court ruled in 1928 that marital rape is legal,[32] Article 267 of the Egyptian Penal Code (last amended by Law No. 11 of 2011) states that 'whoever has sex with a female without her consent' (بغير رضاها يعا bighayr raddaha yaea) has committed rape.[33][34]
  • India. Although marital rape of wives from age 14 is not criminalised (since sex within marriage is considered consensual by definition), Section 375 of the Indian Penal Code stipulates that any man who has sexual intercourse with any woman he is not married to 'against her will' (1), 'without her consent' (2), when consent was obtained by coercion (3), when consent was obtained by identity deception (4), when she was incapable of consenting due to intoxication with a substance (5), when she was incapable of consenting due to her age being younger than 16 (6), has committed rape.[35] Furthermore, Section 377 of the Indian Penal Code provides that any other form of penetrative carnal intercourse with a man, woman or animal is also a crime, although on 6 September 2018, the Supreme Court of India ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults".[36][37]
  • Iraq: Article 393 of the Penal Code (as amended in 2010) states: 'Any person who has sexual intercourse with a female without her consent or commits buggery with any person without their consent is punishable by a term of imprisonment not exceeding 15 years'. However, other forms of sexual assault are only criminalised in Article 396 if they are committed 'without his or her consent and with the use of force, menaces, deception or other means', implying that some kind of coercion needs to be demonstrated in order to be considered a crime, and that lack of consent alone is not sufficient. It is not clear whether marital rape is criminalised by Article 393, although the next Article 394 goes on to criminalise sexual intercourse with underage women and buggery of any person 'outside of marriage' without their consent if they are below 18 (age of consent) or 15 years of age, implying that Article 393 either concerned people within marriage, aged 18+ years, or both. Article 398 (previously Article 427) is a marry-your-rapist law.[38]
  • Myanmar: Section 375 of the Myanmar Penal Code is derived from the same in the Indian Penal Code and states that 'a man is said to commit rape who (...) has sexual intercourse with a woman against her will' (1), 'without her consent' (2), when consent was obtained by coercion (3), when consent was obtained by identity deception (4), or when she was incapable of consenting due to her age being younger than 14 (5). Just like in the Indian Penal Code, marital rape is not criminalised.[law 4]
  • Nigeria: Although marital rape is explicitly excluded from the definition of rape in the Northern Nigeria Penal Code provided the spouse has reached puberty (Section 282(2)),[39] and likewise excluded from Section 357 of the Nigerian Criminal Code (applying to the southern states),[40] Section 357 of the Nigerian Criminal Code stipulates that any man who has sexual intercourse with any woman he is not married to 'without her consent' (1), when consent was obtained by coercion (2), when consent was obtained by 'false and fraudulent representation as to the nature of the act' (3), or when consent was obtained by identity deception (4), has committed rape.[41]
  • Pakistan: Section 375 of the Pakistan Penal Code is derived from the same in the Indian Penal Code and states that 'a man is said to commit rape who has sexual intercourse with a woman (...) against her will' (1), 'without her consent' (2), when consent was obtained by coercion (3), when consent was obtained by identity deception (4), or when she was incapable of consenting due to her age being younger than 16 (5). Unlike the Indian Penal Code, no reference is made to marriage, therefore marital rape is presumed to be criminalised as well.[law 5][42]
  • Uganda: Section 123 of the Penal Code states: 'Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, commits the felony termed rape.'[43] Although the Penal Code does not exempt marital rape, there is no clear criminalisation of it either. In customary law, there is a presupposition that a woman implicitly consents to sexual intercourse with her spouse during marriage.[44][45]
  • Zimbabwe: Criminal Law (Codification and Reform) Act (2007) Section 65 states: 'If a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse – the female person has not consented to it; and he knows that she has not consented to it or realises that there is a real risk or possibility that she may not have consented to it, he shall be guilty of rape.' A 2007 Center for Reproductive Rights report commissioned by the New York City Bar Association's African Affairs Committee argued that the requirement 'that the assailant knew that the complainant had not consented' was 'overly restrictive'.[46]

Countries with mixed legislation

These countries have two separate laws against sexual violence: one for sexual violence committed with coercion, one of sexual violence committed without coercion but also without consent; the latter counts as a lesser crime, and is punished less severely. This is different from countries who cover all sexual violence within a single law based on a lack of consent, but may add extra penalties if the nonconsensual sexual act was accompanied by some form of coercion.

  • 2013: Croatia
    • Sexual intercourse without consent accompanied by force constitutes rape, carrying a maximum penalty of 10 years imprisonment (art. 153 Croatian Criminal Code)[5]:13
    • Sexual intercourse without consent, and without force (e.g. when a victim is unconscious, intoxicated or asleep), constitutes a lesser offence, carrying a maximum penalty of 5 years imprisonment (art. 152(1) Croatian Criminal Code)[5]:13
  • January 2016: Austria
    • Sexual intercourse committed by force, threat or deprivation of liberty constitutes rape, carrying a maximum of 10 years imprisonment (art. 201 Austrian Criminal Code)[5]:13
    • Sexual intercourse against a person's will constitutes a lesser offence, carrying a maximum penalty of 2 years imprisonment (art. 205a Austrian Criminal Code)[5]:13
  • 1 July 2019: Greece. The bill, Article 336, was modified to include a consent-based definition of sexual violence, and included in the new Greek penal code on 6 June 2019.[47] Article 336 went into effect on 1 July 2019.[48]
    • Sexual acts committed by force of coercion shall be punished by imprisonment of at least ten years (τουλάχιστον δέκα ετών) (art. 336.1 Greek Penal Code).[48]
    • Sexual acts committed without consent, and without force or coercion, shall be punished by imprisonment of up to ten years (έως δέκα έτη) (art. 336.4 Greek Penal Code).[48]

Countries with coercion-based legislation
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  • Afghanistan: The Afghan Penal Code was amended in 2017, containing Article 636 which states: 'A person who commits sexual intercourse or inserts body parts or other objects into the victim’s vagina or anus by 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, is considered as a perpetrator of rape.'[49] This appears to criminalise marital rape as well. However, the Shia Personal Status Law, applying to the Shia Muslim minority of approximately 6 million Afghans, exempts spousal rape in Article 132 (2): "It is the duty of the wife to defer to her husband's inclination for sexual enjoyment".[law 6]
  • Algeria: There is no clear definition of rape in Algerian law; Article 333 of its Penal Code only criminalises 'anyone who has committed a public outrage against decency', and in similar words 'public outrage against decency consisting of an unnatural act with an individual of the same sex'. This gives no indication or distinction whether the people involved in the acts are consenting to it or not, merely that the public is supposedly outraged by such acts. Article 334 prohibits '(attempted) assault against decency without violence against a person of either sex younger than 16' (the Algerian age of consent), but against adults only '(attempted) assault against decency with violence' (Article 335) is banned. The lack of unambiguous definitions and explicit criminalisation of marital rape in either the Penal Code or other laws such as Law no.15-19 against domestic violence (2015) has been criticised by the CEDAW Committee and human rights organisations, which urged Algeria to adopt clear, consent-based legislation.[50][51]
  • Argentina: Two laws criminalise rape, including spousal rape; both are coercion-based. Article 2 of Law 25.087 (1999) describes various 'crimes against sexual integrity' as 'Anyone who sexually abuses a person of either sex when the person is under the age of thirteen or when there is violence, threat, coercive or intimidating abuse of a dependency relationship'; this includes 'carnal access by any means'.[52] Article 5 of Law 26.485 (Law of Integral Protection of Women, 2009) defines sexual violence as 'Any action that implies the violation in all its forms, with or without genital access, of a woman's right to voluntarily decide about her sexual or reproductive life through threats, coercion, use of force or intimidation, including rape within marriage or other related or kinship relationships, whether or not there is coexistence, as well as forced prostitution, exploitation, slavery, harassment, sexual abuse and trafficking in women.'[53]
  • Brazil: Although Article 215A criminalises sexual harassment on the basis of a lack of consent (sem a sua anuência) and Article 215 criminalises 'carnal conjunction' by 'fraud or other means that prevent or hinder the victim's free expression of will', Article 213 defines rape as 'compelling someone, through violence or serious threat, to having carnal conjunction or to practicing or allowing another libidinous act'. Since 2005, the law does criminalise rape of men or women, including spousal rape (Articles 213 & 226 of the Criminal Code).[law 7][law 8][54]
  • China: "Article 236. Whoever, by violence, coercion or other means, rapes a woman is to be sentenced to not less than three years and not more than 10 years of fixed-term imprisonment."[55] Chinese law also does not safeguard same-sex couples or victims of marital rape.[56]
  • Colombia: Articles 205 to 212A criminalise various sexual acts (including spousal rape, 211(5)) on the basis of violence. 210A and 212A do mention consent, but only in the context of the incapacity to consent to sexual acts due to being overpowered by 'superiority or authority' (210A) or 'fear of violence, intimidation; illegal detention; psychological oppression; the abuse of power; the use of environments of coercion and similar circumstances that prevent the victim from giving their free consent' (212A).[57]
  • Democratic Republic of the Congo: Although the Law Amending the Penal Code (2006) criminalised 'any act contrary to morals intentionally and directly carried out on a person without the valid consent of that person' as 'indecent assault' (Article 167), Article 170 states: 'Rape is committed by the use or threat of violence or serious harm or force against a person, directly or through an intermediary or through a third party, either by surprise, by psychological pressure or in the context of a coercive environment or by abusing a person who, because of an illness, the impairment of his or her faculties or any other accidental reason has lost the use of his or her faculties or has been deprived of them by tricks'.[58][46] Moreover, the legal definition of rape does not include spousal rape;[59] customary law holds that sex within marriage is consensual by definition.[60]
  • Ethiopia: Criminal Code Article 620 states that rape is committed by 'whoever compels a woman to submit to sexual intercourse outside wedlock, whether by the use of violence or grave intimidation, or after having rendered her unconscious or incapable of resistance', thus placing responsibility on the victim to resist her attacker until she is overcome by coercion, and exempting marital rape from prosecution.[61]
  • Indonesia: Article 285 of the Indonesian Criminal Code requires 'force or threat of force' for sexual intercourse with a woman out of marriage to constitute rape. Similarly, Article 289 criminalises 'obscene acts' forced upon any person by any person 'using force or threat of force'.[62] Although Article 285 includes "out of marriage" in the definition of rape,[law 9] marital rape is considered a form of domestic violence under Articles 5, 8, 46, 47 and 53 of the Law Regarding the Elimination of Violence in the Household, 2004.[law 10]
  • Iran: Penal Code Article 221 considers sex within marriage consensual by definition, and all sex outside marriage to be zina (a type of crime) by definition. Article 224 (d) is understood to refer to rape outside marriage, which is defined as 'zina committed by coercion or force'.[law 11]
  • Japan: Penal Code of Japan Article 177 describes forcible sexual intercourse as 'A person who, through assault or intimidation forcibly engages in vaginal intercourse, anal intercourse or oral intercourse (hereinafter referred to as "sexual intercourse") with another person'. Article 178 further implies that victims of sexual assault are required to resist their attackers.[63]
  • Philippines: Both the Anti-Rape Law of 1997 and the Anti-Violence Against Women and Their Children Act of 2004 criminalise rape, including marital rape, on the basis of coercion.[law 12][law 13]
  • Russia: Criminal Code of Russia Article 131 states: 'Rape, that is, sexual intercourse with the use of violence or with the threat of its use against the victim or other persons, or with the use of the helpless state of the victim.'[law 14]
  • South Korea: Article 297 (Rape) states: 'A person who, through violence or intimidation, has sexual intercourse with a female'. Article 298 (Indecent Act by Compulsion) states: 'A person who, through violence or intimidation, commits an indecent act on another'. Article 299 (Quasi-Rape, Quasi-Indecent Act by Compulsion) states: 'A person who has sexual intercourse with a female or commits an indecent act on another by taking advantage of the other's condition of unconsciousness or inability to resist', implying that in other circumstances a victim should resist a sexual assault until overcome by the perpetrator's superior force.[64] The Supreme Court of South Korea ruled that marital rape (described as 'forced sex with a spouse') was illegal in 2013.[65]
  • Sudan: Some attempts had been made under al-Bashir's rule (1989–2019) to reform legislation on issues such as extramarital rape victim blaming via 'adultery', and impunity for marital rape, by amending the definition of rape in Article 149.1 of the Criminal Code in February 2015. However, several commentators such as the African Centre for Justice and Peace Studies argued that this amendment had a number of flaws. Even though the amendment made it possible to prosecute marital rape by removing the reference to adultery, there is still no specific prohibition of marital rape, and oral rape is not criminalised. Moreover, Article 149.2 still defined adultery and sodomy as forms of 'rape', so complainants still risked being prosecuted for adultery or sodomy if they failed to prove they were subjected to sexual acts without their consent. Finally, the importance of consent was diminished in favour of coercion, going against the trend in international law to define sexual violence by lack of consent.[66] On 22 April 2020, during the Sudanese transition to democracy, the sodomy law was amended: male participants in anal sex (sodomy, whether between two men or between a man and a woman, with or without consent) were no longer punishable by death or flogging, but still punishable by imprisonment.[67]
  • Thailand: Penal Code Amendment Act (No. 19) 2007 criminalised spousal rape in Section 3 (276), which describes rape as 'Anyone who forcibly performs sexual intercourse with another by threatening the latter in whatever manner, by exercising forcible violence, by taking advantage of the latter being in a state of irresistibility, or by causing the latter to mistake him for a different person'.[law 15]
  • Ukraine: Article 152(1) of the Criminal Code of Ukraine states: 'Rape, that is sexual intercourse combined with violence, threats of violence, or committed by taking advantage of the victim's helpless condition.'[68]

These countries currently have coercion-based legislation, but have ratified the Istanbul Convention, which obligates them to introduce a consent-based definition of sexual violence. Therefore, both the legislative and executive branches of government in these countries have been making efforts to draft legislation that complies with the convention.

  • Norway (opposition proposals since March 2018)[69]
  • Portugal (government intention since 2018).[5]:9 The January 2019 GREVIO report judged the 2015 amendment of Article 163 and 164 of the Portuguese Criminal Code to be insufficient to comply to the Istanbul Convention.[70]:49
  • Spain (government intention since 2018).[5]:9 A bill was approved by the Spanish government in March 2020,[71] the parliamentary debates on the exact wording were expected to take several months.[72]
  • Netherlands (government intention since May 2019).[73][74] The government's proposal to introduce a new separate offence named 'sex against one's will' was heavily criticised by Parliament, lawyers, human rights groups such as Amnesty and experts as ambiguous, insufficient to comply with human rights treaties, and affording victims too little protection. In November 2020, Justice Minister Ferdinand Grapperhaus changed the draft law to define all forms of nonconsensual sex as sexual violence or rape; under the new proposal, the use of force or coercion could still result in extra penalties.[75]
  • Finland: In December 2018, citizens' initiative Consent2018 launched a petition to the government to adopt consent-based legislation in accordance with its commitment to the Istanbul Convention.[76] The petition quickly gathered the required 50,000 signatures and was handed to Parliament in June 2019;[76] the same month, the government stated its intention to introduce such legislation.[1] The Finnish Ministry of Justice then established a working group to recommend required reforms by the end of May 2020.[77] The working group's recommendations report was eventually presented to Justice Minister Anna-Maja Henriksson, who praised it, on 7 July 2020. The proposals would go through the first commenting round, return to the ministry in autumn to draft a bill, and then face a second commenting round before being considered by Parliament around spring 2021.[76]

Legislation in the United States
Further information: Rape in the United States § Criminal punishment, Rape laws in the United States, and Campus sexual assault § Prevention efforts

The United States do not have a uniform legal definition of sexual violence, as states may define this differently,[1] but on the federal level the FBI's Uniform Crime Report (UCR) amended its definition of rape on 1 January 2013 from the coercion-based "carnal knowledge of a female forcibly and against her will" to the consent-based "Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim", removing the requirements of force, the victim to be female, and the penetration to be vaginal.[78] Some U.S. states (or other jurisdictions such as American Samoa) recognise penetrative sex without consent by the victim and without the use of force by the perpetrator as a crime (usually called 'rape'). Other states do not recognise this as a crime; their laws stipulate that the perpetrator must have used some kind of force (physical violence (that results in demonstrable physical injury), threats against the victim or a third party, or some other form of coercion) in order for such nonconsensual penetrative sex to amount to a crime.[79] Similarly, some states (or other jurisdictions such as the Military) recognise non-penetrative sex acts (contact such as fondling or touching a person's intimate parts, or exposure of a body or sexual activity) without consent by the victim and without the use of force by the perpetrator as a crime, while other states do not.[79]

U.S. states
  Coercion-based law (all penetrative sex)
  Consent-based law (anal and oral sex)
  Consent-based law (vaginal, anal and oral sex)
  Coercion-based law (non-penetrative sex)
  Consent-based law (non-penetrative sex)

State laws have given various definitions of what constitutes sexual consent:

  • California: Since January 1, 2019, Section 261.6 of the California Penal Code defines "consent" as 'positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.' Sections 261.6 and 261.7 stipulate that, wherever 'consent is at issue' under Section 261, 262, 286, 287, or 289, or former Section 288a, 'a current or previous dating or marital relationship shall not be sufficient to constitute consent', neither is 'evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device'.[80] Although this definition requires "freely given consent" or "affirmative consent", this requirement is either not mentioned or has only limited application in Sections 261, 262, 265, 266a, and 266b.[81]
  • Florida: Section 794.011 of the Florida Statutes defines "consent" as 'intelligent, knowing, and voluntary consent and does not include coerced submission. "Consent" shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.' Any sexual act performed on a person without their freely given or affirmative consent is punishable as 'sexual battery' to various degrees (depending on the perpetrator's and victim's ages, and whether no, some, or potentially deadly physical force or coercion was used).[82][83]
  • Illinois: According to the 2012 Criminal Code of the Illinois Compiled Statutes, Section 720 ILCS 5/11-1.70, "consent" is 'a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent. A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct.' However, the lack of consent is not sufficient to prosecute anyone for a sex crime (except in very specific cases in which the victim is deemed incapable of consenting, namely Section 11–1.20 (a)(2), Section 11–1.50.(a)(2), Section 11–9.2.(e), and Section 11–9.5.(c)), making Illinois' rape legislation coercion-based (Section 11–1.20 (a)(1)).[84][85]
  • New York: In the New York Penal Law, sexual offenses are defined as 'sexual [acts] committed without consent of the victim'. Lack of consent results from 4 possible causes: forcible compulsion, incapacity to consent, the victim not expressly or impliedly acquiesceing (in sexual abuse and forcible touching cases), or expression of lack of consent (in sexual intercourse and sexual oral or anal conduct cases). Consent itself is not defined; Section 130.5 only stipulates that a person who doesn't want to have sex needs to be clear enough in their words and acts, so that 'a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances'. This description doesn't make clear whether affirmative consent is required to have sex (or conversely, whether a lack of affirmative consent can result in a sexual offense), but both 'Section 130.25 Rape in the third degree (3)' and 'Section 130.40 Criminal sexual act in the third degree (3)' do provide this possibility in the form of catch-all clauses by stating that, whenever there is a 'lack of consent (...) by reason of some factor other than incapacity to consent', this is sufficient for the sexual act to amount to a crime.[86][87]
  • Pennsylvania: In the Pennsylvania Consolidated Statutes, 'Section 3107. Resistance not required' stipulates that 'the alleged victim need not resist the actor in prosecutions under this chapter'. The Statutes do not define consent, but if an actor engages in sexual intercourse or deviate sexual intercourse, or aggravated indecent assault, with a complainant without the latter's consent, this makes the actor punishable under 'Section 3124.1. Sexual assault', or 'Section 3125. Aggravated indecent assault', respectively. Furthermore, mental disability can render a person incapable of consenting to sexual intercourse, deviate sexual intercourse, or aggravated indecent assault, thus making an actor who engages in these acts with a mentally disabled complainant punishable under 'Section 3121. Rape', 'Section 3123. Involuntary deviate sexual intercourse', or 'Section 3125. Aggravated indecent assault', respectively.[88][89]
  • Texas: Consent itself is not defined; the Texas Penal Code only specifies 12 circumstances in which consent is absent, and sexual assault can occur.[90] There is no freely given consent or affirmative consent;[90] Section 22.011 (b) implies that a person's consent is always present, except in the 12 specified circumstances that render a person incapable of consenting, such as being forced or coerced with violence or threats by the actor (possibly because of the unequal power balance between the actor and the other person), unconscious or 'physically unable to resist', or having a 'mental disease or defect'.[91] Texas sexual assault law is therefore coercion-based: the actor requires no freely given consent or affirmative consent from the other person, and the other person cannot freely revoke their implied permanent consent, unless they can satisfy one of the 12 specified circumstances. In other words: if the other person claims not to have wanted to have sex with the actor, but cannot be demonstrated to have been incapable of consenting, and the actor cannot be demonstrated to have used some kind of force or coercion, it is not sexual assault under Texas state law.[90]

U.S. military
Further information: Sexual assault in the United States military

The Uniform Code of Military Justice (UCMJ) of the United States Armed Forces provides a definition of consent and examples of illegitimate inferrals of consent in § 920. Art. 120. "Rape and sexual assault generally" (g) 7 and 8:

(7) Consent.—

(A) The term “consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance does not constitute consent. Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent.
(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (B) or (C) of subsection (b)(1).
(C) All the surrounding circumstances are to be considered in determining whether a person gave consent.

(8) Incapable of consenting. —The term “incapable of consenting” means the person is—

(A) incapable of appraising the nature of the conduct at issue; or
(B) physically incapable of declining participation in, or communicating unwillingess to engage in, the sexual act at issue.[92]

Effect on conviction rates

In June 2020, the Swedish National Council for Crime Prevention (Bra) reported that the number of rape convictions had increased from 190 in 2017 to 333 in 2019, a rise of 75% after Sweden adopted a consent-based definition of rape in May 2018; reports of rape rose by 21% in the same period. Furthermore, the introduction of the new offence of 'negligent rape' – for cases where courts found consent had not been established, but that the perpetrator had not intended to commit rape – led to the conviction of 12 people. Bra was positively surprised by this greater-than-expected impact, saying 'this has led to greater justice for victims of rape,' and hoping it would improve social attitudes towards sex. Amnesty International regarded the results as evidence that other countries should also adopt consent-based legislation in order to protect (potential) victims of sexual violence better.[93]

See also

References
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Relevant legislation
  1. Turkey: Criminal Code (amended to 2016)
  2. Tanzania: Sexual Offences (Special Provisions) Act (1998)
  3. Bangladesh: Penal Code (1860, amended to 2008)
  4. Myanmar: Penal Code
  5. Pakistan: Penal Code
  6. Afghanistan: Shia Personal Status Law (2008)
  7. Brazil: LAW No. 11,106, OF MARCH 28, 2005 (in Portuguese)
  8. Brazil: Criminal Code (1984, amended to 2018) (in Portuguese)
  9. Indonesia: Penal Code
  10. Indonesia: Law Regarding the Elimination of Violence in the Household (2004)
  11. Iran: Penal Code {2012}
  12. Philippines: Anti-rape law (1997)
  13. Philippines: Anti- Violence Against Women and Their Children Act (2004)
  14. Russia: Russia (1996, amended to 2018) (in Russian)
  15. Thailand: Penal Code Amendment Act (No. 19) (2007)
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