Times Up for Europe’s dangerous and antiquated rape laws

By Stefan Simanowitz, Amnesty International

Yesterday, Denmark’s new government, led by Mette Frederiksen’s Social Democrat party, published an 18-page manifesto outlining its ambitions for its first term in office. The paper - “A fair direction for Denmark’ - focuses primarily on policies to deal with climate crisis, housing, transport and homelessness. But it also contains an important commitment to recognize in law the simple fact that sex without consent is rape.

Paradoxically, despite its image as a land of gender equality, the reality for women in Denmark is starkly different when it comes to rape. Antiquated laws use a definition of rape based on whether physical violence, threat or coercion are involved or if the victim is found to have been unable to resist. The assumption that a victim gives her consent because she has not physically resisted is deeply problematic since “involuntary paralysis” or “freezing” has been recognized by experts  as a very common physiological and psychological response to sexual assault.

Yesterday, Denmark’s new government published a manifesto in which it commits to recognize in law the simple fact that sex without consent is rape
Stefan Simanowitz, Amnesty International

This focus on resistance and violence rather than on consent has an impact not only on the reporting of rape but also on wider awareness of sexual violence, both of which are key aspects in preventing rape and tackling impunity.

The issue of “involuntary paralysis” was central to last week’s sentencing of five men known as the "Wolf Pack" to 15 years in prison for an horrific gang rape in Spain. The decision by the Supreme Court overturned a 2018 ruling that established lack of consent but found the men guilty of the lesser offence of sexual abuse because the victim froze and the lower court did not find enough violence or intimidation for the crime to be considered rape. This case put the need for changing Spanish rape law high on the country’s agenda, but it is not just Denmark and Spain that are focusing on the need for change.

Shockingly, only nine countries Europe recognize that sex without consent is rape. But things are changing
Stefan Simanowitz, Amnesty International

Shockingly, only nine countries in the European Economic Area (EEA) recognize that sex without consent is rape. But things are changing.

Earlier this month, a last-minute U-turn by the Greek government, resulted in an amendment to the criminal code and a recognition in law that sex without consent is rape and that physical violence is not required for the crime to be considered rape.

Last year, Iceland and Sweden became the seventh and eighth countries in Europe to adopt new legislation defining rape on the basis of lack of consent. Likewise, new proposals to amend current rape laws have been tabled in the Portuguese and Swiss Parliaments.

The importance of changing the law on rape cannot be underestimated. Whilst it will not eradicate rape, what is written in the law plays a major role in defining attitudes as to what rape is. Currently prevailing and erroneous myths about rape make it hard for rape victims to report the crime to the police or to seek medical help.

Figures from a recent European Union-wide survey show that one in 20 women aged 15 and over in the EU have been raped. That is around nine million women. Yet despite the seriousness of the violation, rape remains hugely under-reported in Europe. Fear of not being believed, lack of trust in the justice system or the stigma attached to it deter too many women and girls from reporting rape.

Whilst amending rape laws are a vital first step, much more needs to be done to end the culture of victim blaming and impunity reinforced by stereotypes which pervade many societies: from playground to locker room, police station to witness stand
Stefan Simanowitz, Amnesty International

Another recent study found that more than one in four people in the EU believe that sexual intercourse without consent may be justified in certain circumstances, such as if the victim is drunk or under the influence of drugs; or voluntarily going home with someone, wearing revealing clothes, not saying ‘no’ clearly or not fighting back.

Myths and gender stereotypes also influence the way rape cases are handled by the criminal justice system. They often underpin attitudes of police and judges and the resulting low prosecution and conviction rates affect confidence in the justice system. 

Whilst amending rape laws are a vital step towards changing attitudes and achieving justice, much more needs to be done to end the culture of victim blaming and impunity reinforced by stereotypes which pervade many societies: from playground to locker room, police station to witness stand.

Steps are needed to ensure that rape myths are challenged at all levels of society and that professionals working with rape survivors receive adequate continuous training. Broader sexuality education and awareness-raising programmes are also needed.

It seems likely in the coming months, that Denmark will adopt legislation providing for a consent-based rape definition and it is clear that the momentum for change is building across Europe. Change that will ensure that future generations of women and girls will never have to question whether rape is their fault or doubt that the perpetrators will be punished.

This article was first published here by Newsweek.