Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether the alleged victim had freely given consent, and whether 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.
Although many jurisdictions do not define what sexual 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 consent should be based on them not having given consent to having sex, or based on them being forced through violence or threats to have sex. Some legislation determines that, as long as no coercion is used against them, people capable of consenting always automatically consent to sex (implied consent), whereas other laws stipulate that giving or withholding consent is something which only capable individuals can do on their own volition (freely given or affirmative consent). 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.
Coercion-based versus consent-based laws
In legal theory, there are two main models in legislation against rape and other forms of sexual violence: 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"; 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".
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. 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).
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.
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" – 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). 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.
In contrast, legal scholar Jed Rubenfeld argued in a 2013 review that rape laws intend to protect sexual autonomy, yet the only thing that can override somebody's autonomy is coercion, threats, or abusing a state of defenselessness. Strictly speaking, Rubenfeld (invoking Commonwealth of Pennsylvania v. Berkowitz 1994) claimed that any non-consensual situation can be resolved by standing up and leaving the premises, as he deemed rape paralysis to be nonexistent. In civil law, consent is viewed as invalid if it has been obtained by deception. Consent-based rape laws, however, generally do not require either sexual partner to be truthful before obtaining consent. If sexual consent can be obtained by lies or withholding information, the autonomy of the partner is violated.
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,For example, in its General recommendation No. 35 of 2017, Part IV, recommendation no. #33: 'Ensure that the definition of sexual crimes, including marital and acquaintance/date rape is based on lack of freely given consent, and takes account of coercive circumstances.' the UN Handbook for Legislation on Violence against Women, the International Criminal Court and the Istanbul Convention. However, there were no internationally agreed upon legal definitions of what constitutes sexual consent; such definitions were absent in human rights instruments.
International law In international law, one of the earliest definitions of rape based on a lack of consent, accompanied by a description of consent, can be found in Prosecutor v. Kunarac (decided on 22 February 2001 at the International Criminal Tribunal for the former Yugoslavia or ICTY): In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. This description of consent was adopted almost verbatim in Istanbul Convention Article 36: "Consent must be given voluntarily as the result of the person's free will assessed in the context of the surrounding circumstances". The 2021 Model Rape Law featured the same consent description under IV.D.(c) and V.A.17.
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 that 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.
In June 2021, the then United Nations Special Rapporteur on Violence Against Women Dubravka Šimonović published a Model Rape Law, intended as a "harmonisation tool" for "implementing international standards on rape, as established under international human rights law, international humanitarian law and international criminal law, including as interpreted in the jurisprudence of relevant tribunals and soft law produced by expert mechanisms." It stated inter alia: "Rape is an act of sexual nature committed without consent. Definitions of rape should explicitly include lack of consent and place it at its centre, stipulating that rape is any act of sexual penetration of a sexual nature by whatever means committed against a person who has not given consent." Its section "On consent" combined the Istanbul Convention's description of consent with Rule 70's illegitimate inferrals of consent, adding that "consent need not be explicit in all cases". It proposed an international age of consent at 16, not to criminalise "consensual sexual relations between children younger than 16", and a Romeo and Juliet law around the age of consent threshold. The Model Rape Law stated that "[l]ack of consent is presumed where rape was committed by force, or by threat of force or coercion", or whenever a person was "incapable of giving genuine consent" for a wide range of reasons, including but not limited to being younger than age 16, "unconscious, asleep, or seriously intoxicated as a result of drugs or alcohol consumed voluntarily, involuntarily or unknowingly", or abused by the perpetrator's "relationship or position of power or authority over the victim".
African Union
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.
ASEAN