The long road to a consent-based rape law in Denmark

As a human rights activist there are moments where we feel things shift.

One of those moments came last year during a meeting with Denmark’s then Justice Minister, Søren Pape Poulsen.

I was there to discuss with him our Amnesty International’s Let’s Talk About Yes campaign to urge the government to change Denmark’s antiquated rape laws. These laws have left thousands of women unable to access justice – women like the two survivor activists who were with me at the meeting. 

I remember watching the Minister’s face as one of the survivors described in heart-rending detail how she was failed at every stage of the Danish justice system after she reported being raped by a friend in 2018.

The Minister listened to her in silence.

I remember watching his face. He was visibly moved. When he spoke, there was tremor in his voice. He admitted that he had been wrong to argue that the proposed consent-based rape law was not practical.

Until now, Danish law has not defined rape on the basis of lack of consent. Instead, it used a definition based on whether physical violence, threat or coercion was involved or if the victim was found to have been ‘unable to resist’. The assumption that a victim gives consent because they have not physically resisted is wrong. “Involuntary paralysis” or “freezing” has been recognized by experts as a very common physiological and psychological response to sexual assault.

How the law defines rape is a crucial deciding factor in whether survivors are able to access to justice.

After that meeting, the Minister of Justice began to openly support changing the rape law. By saying publicly that he had changed his mind, he gave others the possibility to change their minds too. Today, Danish parliamentarians voted through a new consent-based law with a large majority.

This historic day did not come about by chance. It is the result of years of campaigning by survivor groups. Amnesty International has been proud to be part of a broad coalition of women’s rights organisations, movements like Black Lives Matter Denmark, survivor activists and youth activists, who together, have kept calls to change the law on the agenda. Under the banners of the #LetsTalkAboutYes campaign, thousands of people took part in demonstrations all over Denmark and campaigners met with parliamentarians and government officials many times.  

This victory is also the result of persistent work inside the Danish Parliament, especially of the Red Green Alliance party who have put forward several proposed changes to the rape law over the years. The changes were voted down again and again – but they did not give up. 

Amnesty International’s 2019 report

on access to justice for rape survivors revealed the extent to which women and girls in Denmark continue to be betrayed by outdated rape legislation. It documented that impunity and harmful gender stereotypes at every stage of the legal process stand in the way of justice.

The report got lots of attention and we were met with strong conservative forces in society, who opposed the change of law. But it also had another impact – numerous women came forward to speak about their experiences with the legal system. They described the obstacles which prevented them getting justice, or talked about why they did not feel they could report their rape. The women also gave insights into the persistent gender stereotypes and old-fashioned views on male and female sexuality which are still a reality in Denmark.

It’s became harder for any politicians with hearts and ears to keep justifying the status quo.

On 17 December, Danish parliamentarians voted for the definition of rape to be changed from a force-based one to underlining that sex without consent is rape, meaning Denmark’s legal definition of rape will finally align with international human rights standards such as the Istanbul Convention.

“The new law falls short of being crystal clear in its commentary that passivity cannot be taken to mean consent but despite this weakness, it is nevertheless a huge step forwards for Denmark”.

“It has been a historical and important fight, but it has not been without consequences for a lot of us who have used our own case to change the law,” Kirstine Holst, a consent activists told me. “The resistance has been expected and hard and it has come from a lot of places. In my own case it was the person I reported to the police as well as members of the organization of judges who attacked me in public. I am happy the law is now changed, but the fight is not over.”

This is a milestone for women’s rights. Today we are celebrate, but tomorrow we will go back to work. The law is just the first important step. The next task is to continue working on changing the culture in Danish society and among professionals in the legal system. Only then will we be in a situation where stories – like the one told so bravely by the survivor of rape to the Minister of Justice – become less and less common.

Helle Jacobsen is the senior policy advisor and researcher on gender for Amnesty International, Denmark

This article was first published here by Newsweek