The Dual Setting of Consent in Sexual Violence Cases and Further Considerations

Introduction

Sex without consent is rape: a simple concept that, however, does not generate consensus. This disagreement stems from the lack of an unambiguous and agreed-upon  legal definition of consent in international law, resulting in each state introducing the definition that best suits its society into its legal system. Women who experience sexual violence are forced to bear the consequences of this lack of legal clarity. This article intends to analyse the divergences in the law on consent, shed light on the importance of consensus, illustrate how the definition of consent has  changed over time and explore the implications of these decisions. These issues will be explored in more depth by considering them in light of the complexity of the human psyche, which will allow it to go beyond the ‘yes and no’ poles.

From negative to affirmative consent

Generally, consent is understood as a form of permission that a person freely gives to someone, in various ways, to do anything that affects his, her, or their body and personal space. The Istanbul Convention, the cornerstone of the criminalisation of non-consensual acts, specifies that “consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances” (Council of Europe Convention on preventing and combating violence against women and domestic violence, 2011). According to the Convention, consent has three main characteristics: specific, variable, and informed. This means that consenting to one thing does not necessarily imply consenting to everything else, which is why it is specific. Moreover, it is not definitive since one can always change their mind about what they want to do at any time, and it cannot be based on false or incomplete information. Any act performed without consent is a form of sexual violence.

However, going deeper into the meaning of a ‘non-consensual act’ in the context of rape, the approach over the years has not always been consistent. In particular, there has been a shift from the negative consent approach to the positive consent approach. The former is embodied in the ‘no means no’ solution that requires the (expressed) opposition of the person subjected to violence, while the latter, ‘only yes means yes’, is based on the affirmative and enthusiastic consent of all persons involved. In both variants under discussion, coercion is no longer the constitutive element of the crime of sexual assault and rape. Yet, there are substantial differences between the two that favour the affirmative consent option.

The ‘no means no’ approach implies that every act is allowed in sexual matters as long as no rejection is pronounced. Substantially, the judge in rape cases will have to verify the presence of consent by ascertaining dissent. However, this is not an effective method to prevent  gender-based violence, as it excludes several situations in which people can not express their opposition. These situations include cases of freezing, shock, and deception about the sexual nature of an act. The ‘no means no’ approach requires that there are elements that prove opposition to the act for the crime to be considered rape, such as the use of violence or the threat of violence.  However, not all rape cases involve attacks on a woman and a fight between her and the perpetrator. Therefore, many cases of rape are not recognised as such due to the absence of (expressed) refusal, causing the person who has been raped to bear the responsibility for not having expressed her opposition. She feels obligated to justify to herself, those around her, and the judicial authorities the reasons why she did not not refuse or defend herself by force. It is against this backdrop that the positive consent approach has emerged: only yes means yes.

With the positive consent solution, sexual acts are only permitted if the corresponding will is expressed prior to the act. It is thus made clear that silence and passivity do not amount to consent. This option not only better reflects all situations of sexual violence but also offers better protection for rape survivors because it presumes dissent. Therefore, the burden is on the perpetrator to prove consent to the act and not anymore on the survivor to prove dissent.

In many countries, the change of approach to consent in rape cases on the legislative level has not taken place. Italy, for instance, does not include any reference to consent in the rape law. Other countries have approved the change however, such as Spain in 2022. The case which triggered the change was the 2016 gang rape when five men raped a woman during the famous San Fermìn bull run (Avataneo, 2022). The five men were found guilty of sexual abuse but not of rape, as video footage showing the woman motionless during the rape was considered proof of her consent. Following protests triggered by the court’s decision, the court overturned the ruling, and a few years later, the Solo sì es sì law came into force in Spain (Avataneo, 2022).

Meanings of consent

One of the reasons why it is so difficult to reach an agreement on the deeper meaning of consent from a legislative point of view, is because society fails to understand and appreciate the nuances and complexities of consent. First and foremost, the topic at hand is consent within sexual acts, which is a deeply intimate and inherently complex aspect of human relationships. Therefore, consent itself cannot be reduced to a question of ‘yes versus no’ or ‘absence versus presence’. Instead, it would be more appropriate to address the nuances of consent and what exists between the ‘yes’ and the ‘no’. Researcher and sex educator Emily Nagosky distinguishes four types of consent: enthusiastic, voluntary, involuntary, and forced (Cortese, 2023). The focus of this article is of course on the first two types,  as ‘involuntary’ and ‘forced’ do not constitute real consent.

According to the researcher, enthusiastic consent is given when one accepts a sexual act because it is enthusiastically desired. This would fit into the collective imagery of consent that involves the opposite poles of ‘yes versus no’. However, voluntary consent invites more complexity, as  it is given when one consciously and voluntarily accepts a sexual act, even when there is no desire. This would include situations in which one consents to the act to bring pleasure to the other person involved or in which a practice is proposed for which one is afraid but is simultaneously moved by curiosity. Voluntary consent thus also covers all those scenarios in which one voluntarily decides to engage in a sexual act, but is not necessarily happy to do so, given the act does not necessarily bring pleasure. Keeping in mind that consent is always revocable, it is up to the person to decide whether or not to revoke it. If one decides to go ahead voluntarily and freely without any form of violence or coercion from the other, the sexual act does not constitute rape. On an opposite note, involuntary consent is given when one accepts any sexual act out of fear of the consequences if they refuse. In this specific case, it might seem that there is real consent, but this consent is not enthusiastic or voluntary (Cortese, 2023). It is the assumptions that are different.

Another issue which highlights the complex and nuanced nature of consent is the voluntariness of sex work. From the lens of radical feminism, sex work is understood as detrimental to the integrity and dignity of women, as well as a catalyst for gender inequality due to the current conditions under which it is exercised (the patriarchal society). In this sense, radical feminists equate sex work with rape (sex without consent), as it would not be possible to express valid consent to what is portrayed as a harmful practice (Barry, 1995). By distancing oneself from such a theory that denies the possibility of voluntary consent,  sex work should be understood as the intersection of economic and sexual dimensions, given that it is an activity that is both sex and work that generates financial remuneration (Serughetti, 2019).

With this in mind, one can reason about the character of voluntariness attributed to the actions of those who sell sex services. Firstly, it is essential to embrace a perspective that is sensitive to the complexity and plurality of the subjects involved in sex work, which should not be reduced to the single narrative of women sex workers, given that the sex market also involves men and transgender people. Moreover, the same criteria and standards that apply to other spheres of human economic action can be used to assess the voluntariness of the choice to enter or remain in sex work (Serughetti, 2019). Researcher and university professor Giorgia Serughetti presents four criteria in this regard. The criterion of the acceptable alternative, exit options, consent to sexual acts, and the perspective of sex workers.

Therefore, a choice is voluntary not only in the absence of external violent compulsion but if and only if it is made when an acceptable alternative exists. However, this criterion cannot be the only one, as in a capitalist and patriarchal power system, one would end up describing a large part of human action as non-voluntary and entirely disregarding individuals’ capacity for agency. Thus, the concept of voluntariness is strengthened by adding criteria such as providing practical and reasonable options to remain in the chosen situation (exit options) and ensuring the person has enough information to make an informed decision.

Given the particular character of sex work, which by its very nature entails the performance of a series of sexual acts, one obviously cannot deny the need for a criterion that guarantees individual sexual freedom. To do so, the person must consent to each individual act, generic consent to have sexual intercourse is not sufficient. If consent is lacking, the act becomes sexual assault. Finally, in assessing whether the individual situation is consensual, priority must certainly be given to the views, perspectives, and experiences of the persons concerned as the first and best judges of their situations and motivations.

If all these criteria are met, the choice has been voluntary and consensual. Therefore, defining sex work as rape is deeply flawed precisely because there is a character of voluntary consent. Moreover, this assumption presents at least three problems. First, it invisibilises the situations where rape occurs within sex work. Secondly, it blames sex workers who have been subject to violence, legitimising accusatory attitudes towards them because of their profession. Finally, it deprives sexual  workers of agency, infantilising them. All this is to say that people’s consent must always be respected, even if their decisions are perceived as morally wrong from an alternate perspective.

To conclude, depriving women, in the case of female sex workers, of their decision-making capacity is a form of psychological violence, not alien to the dynamics of patriarchy. One example which illustrates the importance of respect for consent are the  anti-violence centres that take care of women who have suffered violence in Italy. At these centres, operators propose solutions and always obtain the woman’s consent before beginning any activity, whether it be reporting the abuser or moving the victim to another place. The request for the woman’s consent enables the woman to have more power in her life decisions,  after the violence she has experienced has made her completely passive. Therefore, these centres work with the woman to provide a platform for change, starting with understanding her personal needs. If she does not want to accept the options suggested to her, the woman is free to reject it. This means that the woman may also decide to return to the abuser. However wrong or incomprehensible it may seem, it is still important to respect her choice. Anti-violence centres are obliged to accept these individual choices because they look at the systemic and structural nature of patriarchal culture as a whole, with all its dynamics, which also includes depriving women of their agency.

Conclusions

Providing a clear definition of rape is essential to serve justice to survivors of sexual violence. While the definition of rape is generally accepted as  ‘sex without consent’, consensus among the international community and civil society as to what consent entails is still lacking.

Over the years, there has been a shift from so-called ‘negative consent’ to ‘positive consent’, which emphasises that silence and a lack of opposition to a sexual act are  not the same as consenting to it. Only yes means yes. This change of approach has had important implications in cases of sexual violence as well as in society. However, when it comes to consent, human experiences show that the issue is much more complicated than simply reducing it to a question of ‘yes versus no’.

There are nuances of consent, which, although not a full yes, remain a form of approval. Substantially, a choice can be considered consensual if acceptable alternatives exist, practical options with sufficient information are provided, consent is given for each act, and the individual’s voice is acknowledged. This approach to consent in a broad sense has been implemented in the management of anti-violence centres, which wait for the consent of the survivor of violence before proceeding with any of the activities proposed. These centres aim to respect the victim’s choice, whatever it may be. By obtaining their consent, it is hoped that they give survivors back the agency and self-determination that the patriarchy has taken away from them, putting them at the centre of the decisions that affect and influence them, as it should always be.

Bibliography

Amnesty International (2022, June). Yes means Yes – Solo sì vuol dire sì. Amnesty International. Retrieved on October 8th, 2024 from:

https://www.amnesty.ch/it/campagne/violenza-sessuale/yes-means-yes-solo-si-significa-si

Avateneo G. (2022, 27 May). “Solo sì vuol dire sì”. Il Congresso spagnolo approva la legge del consenso sessuale.  EuroNews. Retrieved on October 8th, 2024 from:

https://it.euronews.com/2022/05/27/solo-si-vuol-dire-si-il-congresso-spagnolo-approva-legge-del-consenso-sessuale  

Barry K. (1995). The Prostitution of Sexuality. NYU Press.

Cortese E. (2023, 5 September). Il consenso al centro.  InGenere. Retrieved on October 8th, 2024 from:

https://www.ingenere.it/articoli/il-consenso-al-centro

Council of Europe Convention on preventing and combating violence against women and domestic violence (2011)

https://rm.coe.int/168046031c

Mettler K. (2018, 15 February). ‘No means no’ to ‘yes means yes’: How our language around sexual consent has changed. The Washington Post. Retrieved on October 8th, 2024 from:

https://www.washingtonpost.com/news/soloish/wp/2018/02/15/no-means-no-to-yes-means-yes-how-our-language-around-sexual-consent-has-changed/ 

Serughetti G. (2019, 7 October). Prostitution: violence or work? Reflections on Voluntariness, Coercion and Harm in the Context of Debates on Policy Alternatives. International Journal of Gender Studies, 8(15), 164-195.