Sex without consent is rape. So why do only nine European countries recognise this?

By Anna Błuś

Approximately nine million women in the EU have been raped since the age of 15. The number is shocking. Equally alarming is the fact that few European countries treat this crime as seriously as they should – in law and in practice.

Only nine European countries out of 33 recognise the simple truth that sex without consent is rape (when counting the three UK jurisdictions separately).

What message does this send to perpetrators? What does this say to our societies, where survivors are still overwhelmingly blamed for being sexually assaulted?

The lack of legal recognition that non-consensual sex is rape feeds into the perception that it is our responsibility as women to protect ourselves from rape. These attitudes are dangerous and need to change.

England and Wales, Scotland, Northern Ireland and the Republic of Ireland, as well as Belgium, Cyprus, Luxembourg and Germany all have consent-based definitions.

But the remaining European countries are lagging far behind, with their criminal laws still defining rape on the basis of physical force or threat thereof, coercion or inability to defend oneself. Out of the Nordic countries, widely considered as beacons of gender equality, Iceland is the first and only one thus far to introduce a consent-based definition.

MP Jón Steindór Valdimarsson, who advocated for the change in Iceland, told the Reykjavik Grapevine: “It will probably help prevent sexual encounters that happen without consent. That is, I think, the main impact of this law.” 

Will the other Nordics and the rest of Europe follow suit?

In Norway, the politicians just missed the opportunity. On 5 April, the Norwegian Parliament rejected such a change, on the very same day that the United Nations Human Rights Committee criticised the government for the current law. However, in neighbouring Sweden the government is determined to pass a new “consent law” before the summer. In Denmark and Finland, similar proposals are being discussed or advocated for by numerous activists and organisations.

A legal definition of rape on the basis of the absence of consent is not new or ground-breaking. It is a recognised international human rights standard. The Council of Europe’s Convention on preventing and combating violence against women and domestic violence (The Istanbul Convention), widely hailed as the most comprehensive legal framework to date to tackle violence against women and girls, obliges signatories to criminalize all non-consensual acts of sexual nature. Despite the fact that the Istanbul Convention has been ratified by more than 20 European states, the majority of them have yet to amend their legal definitions of rape.

In the past five years, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee) has urged several European states to bring their legislation on rape in line with international standards, including the Istanbul Convention, and to define rape on the basis of the absence of consent.

According to the European Commission’s 2016 survey on gender-based violence, almost one-third of respondents considered that sexual intercourse without consent may be justified “in certain circumstances.” These included, for example, if the person is drunk or under the influence of drugs, is voluntarily going home with someone, wearing revealing clothes, not saying “no” clearly or not fighting back.

In fact, despite the expectation that a “model” rape victim will fight her attacker back, freezing when confronted with a sexual attack has been recognised as a common physiological and psychological response, leaving the person unable to oppose the assault, often to the point of immobility. For example, a 2017 Swedish clinical study found that 70% of the 298 women rape survivors assessed experienced “involuntary paralysis” during the assault.

In an ongoing case in the North of Spain, the autopsy of the body of Diana Quer, who disappeared in 2016, did not allow for establishing whether she was raped based on biological evidence due to the level of decomposition. But the case sparked important discussions about how misguided the expectations on women to physically resist rape are after some media speculated that Diana was killed precisely because she resisted sexual assault. Not only societal expectations but too many criminal justice systems place the burden on women to fight instead of on perpetrators not to rape. As this case shows, when women resist, they may pay with their lives. When they don’t, they are often not believed.

In Northern Ireland, the highly publicised acquittal of four Ulster rugby players for rape and other sexual offences provoked nationwide discussions about the adequacy of the legal processes and their treatment of complainants.  During the trial  the complainant was questioned by four defence lawyers for eight days and her bloodied underwear was exhibited in court. This sparked an outpouring of solidarity with the woman in both Northern Ireland and the Republic of Ireland, with thousands of people attending demonstrations in Belfast, Cork, Dublin and other cities, expressing support through the #IBelieveHer hashtag and Facebook page and sharing their own stories.

What the Belfast trial has showed vividly is that even in a jurisdiction where rape is defined on the basis of lack of consent, numerous obstacles remain in the way of women’s access to justice for rape. Consent-based definitions of rape and legal reforms are not the ultimate solutions to addressing and preventing this ever-present crime, rather they are significant starting points. Implementation and prevention are hindered by widespread prejudice, victim blaming, stereotypes and myths, often amongst those tasked with preventing rape and enabling survivors’ access to justice. With the #MeToo movement, our voices as women are being heard like perhaps never before. But it is not just up to activists to enforce changes. Freedom from rape is a human right. It’s high time states take responsibility and step in to recognise in law that sex without consent is rape.