Editing Sexual consent (section)

== Legislation ==
{{See also|Consent (criminal law)}}
=== 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';<ref name="Koljonen">{{Cite journal |last=Koljonen |first=Camilla |date=15 July 2019 |title=How is consent-based legislation on rape providing more protection for individuals in comparison to coercion-based legislation? - Comparison between Finland and Sweden |url=https://www.researchgate.net/publication/335397291_How_is_consent-based_legislation_on_rape_providing_more_protection_for_individuals_in_comparison_to_coercion-based_legislation_-_Comparison_between_Finland_and_Sweden |journal= |publisher=[[Maastricht University]] |accessdate=29 April 2020}}</ref>
# 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'.<ref name="Koljonen"/>

The primary advantage of the coercion-based model is that it makes it difficult to make a [[false accusation of rape|false accusation of rape or assault]], and thus provides decent protection to the legal position and social reputation of suspects who are innocent.<ref name="Koljonen"/> 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).<ref name="Koljonen"/> 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.<ref name="Koljonen"/> 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"<ref>{{Cite book |last=Daniels |first=Sue J. |date=2016 |title=Working with the Trauma of Rape and Sexual Violence: A Guide for Professionals |url=https://books.google.com/books?id=7XU8DQAAQBAJ&pg=PA26 |location=London/Philadelphia |publisher=Jessica Kingsley Publishers |page=26–28 |isbn=9781784503758 |accessdate=30 April 2020}}</ref> – 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).<ref name="Koljonen"/> 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.<ref name="Koljonen"/>

=== 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]],<ref>For example, in its [https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/CEDAW_C_GC_35_8267_E.pdf 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.'</ref> the UN Handbook for Legislation on Violence against Women,<ref>{{Cite book |date=2012 |title=Handbook for Legislation on Violence against Women |url=https://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/2012/12/unw_legislation-handbook%20pdf.pdf?la=en&vs=1502 |location=New York |publisher=[[UN Women]] |page=24–25 |accessdate=2 May 2020}}</ref> the [[International Criminal Court]] and the [[Convention on preventing and combating violence against women and domestic violence|Istanbul Convention]].<ref name="AI2018"/>{{rp|8, 10–11}} However, there were no internationally agreed upon legal definitions of what constitutes sexual consent; such definitions were absent in human rights instruments.<ref name="AI2018"/>{{rp|10}} Istanbul Convention Article 36 remarks that '[c]onsent must be given voluntarily as the result of the person's free will assessed in the context of the surrounding circumstances'.<ref name="AI2018"/>{{rp|11}} 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 which defendants might try to use to claim they had consent:

<blockquote>Rule 70: Principles of evidence in cases of sexual violence<br />
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.<ref>{{Cite web |url=https://www.icc-cpi.int/iccdocs/pids/legal-texts/rulesprocedureevidenceeng.pdf |title=Rules of Procedure and Evidence |publisher=[[International Criminal Court]] |date=2013 |accessdate=2 May 2020}}</ref>{{rp|24–25}}</blockquote>

The [[Uniform Code of Military Justice]] (UCMJ) of the [[United States Armed Forces]] provides a definition of consent and examples of illegitimate inferrals of consent in § 920. Art. 120. "Rape and sexual assault generally" (g) 7 and 8:
<blockquote>(7) Consent.—
:(A) The term “consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance does not constitute consent. Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent.
:(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (B) or (C) of subsection (b)(1).
:(C) All the surrounding circumstances are to be considered in determining whether a person gave consent.

(8) Incapable of consenting. —The term “incapable of consenting” means the person is—
:(A) incapable of appraising the nature of the conduct at issue; or
:(B) physically incapable of declining participation in, or communicating unwillingess to engage in, the sexual act at issue.<ref>{{Cite web |url=https://www.law.cornell.edu/uscode/text/10/920 |title=10 U.S. Code § 920.Art. 120. Rape and sexual assault generally |work=[[Uniform Code of Military Justice]] |publisher=[[Legal Information Institute]] |date= |accessdate=12 May 2020}}</ref></blockquote>

[[File:Regional women's rights conventions participation map.svg|thumb|Participation in the [[Belém do Pará Convention]], the [[Maputo Protocol]] and the [[Convention on preventing and combating violence against women and domestic violence|Istanbul Convention]] combined.
{{legend|#00AA00|Signed and ratified}}
{{legend|#008000|Acceded or succeeded}}
{{legend|#EEEE00|Only signed}}
{{legend|#FF1111|Not signed}}
{{legend|#C0C0C0|Not a member state of the AU, CoE or OAS<ref>Denmark has signed and ratified the Istanbul Convention, but it does not apply to Greenland and the Faroe Islands.</ref>}}]]
In 2003, the [[European Court of Human Rights]] ordered all 47 [[Member states of the Council of Europe]] (CoE) to take a consent-based approach to cases of sexual violence on the grounds of [[Article 3 of the European Convention on Human Rights|Article 3]] and [[Article 8 of the European Convention on Human Rights|Article 8]] of the [[European Convention on Human Rights]].<ref name="Koljonen"/> This was the result of its ruling in the [[M.C. v. Bulgaria]] case, namely: 'In accordance with contemporary standards and trends in that area, the Member States' positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.'<ref>{{Cite book |last=Ashworth |first=Andrew J |date=2014 |title=Positive Obligations in Criminal Law |url=https://books.google.com/books?id=uJDqAwAAQBAJ&pg=PT346 |location= |publisher=A&C Black |page=345–346 |isbn=9781782253426 |accessdate=2 May 2020}}</ref> 

The [[Maputo Protocol|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 [[Member states of the African Union|55 member states]].<ref>{{Cite web |url=https://au.int/sites/default/files/treaties/37077-treaty-0027_-_protocol_to_the_african_charter_on_human_and_peoples_rights_on_the_rights_of_women_in_africa_e.pdf |title=Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa |publisher=African Union |date=11 July 2003 |accessdate=19 July 2020}}</ref>

In the 2006 Miguel Castro-Castro Prison v. Peru case, applying to all 35 [[Member states of the Organization of American States]] (OAS), the [[Inter-American Court of Human Rights]] stated the following: 'The Court, following the line of international jurisprudence and taking into account that stated in the [[Belém do Pará Convention|Convention to Prevent, Punish, and Eradicate Violence against Women [Belém do Pará Convention]]], considers that sexual violence consists of actions with a sexual nature committed with a person without their consent (...)'.<ref>{{Cite book |last=Tojo |first=Liliana |date=2010 |title=Tools for the Protection of Human Rights. Summaries of Jurisprudence: Gender-based Violence |url=https://www.cejil.org/sites/default/files/legacy_files/Summaries%20of%20Jurisprudence%20-%20Gender-based%20Violence.pdf |publisher=Center for Justice and International Law |page=9 |accessdate=2 May 2020}}</ref>
 
The [[Council of Europe]]'s 2011 [[Convention on preventing and combating violence against women and domestic violence|Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)]] contains a consent-based definition of sexual violence in Article 36.<ref name="AI2018">{{Cite web |url=https://www.amnesty.org/download/Documents/EUR0194522018ENGLISH.PDF |title=Right to be free from rape. Overview of legislation and state of play in Europe and international human rights standards |publisher=Amnesty International |date=24 November 2018 |accessdate=30 April 2020}}</ref>{{rp|6}} This mandates all Parties that have ratified the Convention to amend their legislation from a coercion-based to a consent-based model.<ref name="AI2018"/>{{rp|9}} Since the Istanbul Convention entered into force in August 2014, some Parties have fulfilled their obligation for sexual violence legal reform;<ref name="AI2018"/>{{rp|9}} as of April 2020, 26 Parties had yet to do so, while 12 signatories still needed to ratify the Convention first.<ref>{{Cite web |url=https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/signatures |title=Chart of signatures and ratifications of Treaty 210: Council of Europe Convention on preventing and combating violence against women and domestic violence |work=Council of Europe website |publisher=Council of Europe |date=11 May 2011 |accessdate=30 April 2020}}</ref> [[Belgium]] already had a consent-based definition since 1989, the [[Republic of Ireland]] already since 1981, with a further amendment passed in February 2017.<ref name="AI2018"/>{{rp|10}} The [[United Kingdom]]'s four constituent countries [[England and Wales]] (one jurisdiction), [[Northern Ireland]] and [[Scotland]] separately introduced consent-based legislation in the 2000s<ref name="AI2018"/>{{rp|11}} despite the UK not having ratified the Convention as of 2018.<ref name="AI2018"/>{{rp|10}} In 2013 and 2016 respectively, [[Croatia]] and [[Austria]] have introduced separate laws for sexual violence committed by coercion and sexual violence committed by lack of consent, treating the latter as a lesser offence with a lower maximum penalty.<ref name="AI2018"/>{{rp|13}}

=== Countries that switched from coercion-based to consent-based laws ===
[[File:Consent-based and coercion-based sexual violence legislation in Europe.svg|thumb|400px|{{legend|#00AA00|Coercion-based legislation}}
{{legend|#008080|Coercion-based legislation; consent-based amendment pending}}
{{legend|#0000FF|Consent-based legislation}}
{{legend|#800080|Mixed legislation}}]]
[[File:Nonconsensual penetrative sex laws by U.S. state map.svg|thumb|300px|{{legend|#00AA00|Coercion-based law (all penetrative sex)}}
{{legend|#008080|Consent-based law (anal and oral sex)}}
{{legend|#0000FF|Consent-based law (vaginal, anal and oral sex)}}]]
[[File:Nonconsensual non-penetrative sex laws by U.S. state map.svg|thumb|300px|{{legend|#00AA00|Coercion-based law (non-penetrative sex)}}
{{legend|#0000FF|Consent-based law (non-penetrative sex)}}]]
*1981: [[Republic of Ireland]] (amendment in February 2017)<ref name="AI2018"/>{{rp|11}}
*1989: [[Belgium]]<ref name="AI2018"/>{{rp|9}}<ref>[http://www.ejustice.just.fgov.be/eli/wet/1867/06/08/1867060850/justel Belgian Penal Code] Article 375 (introduced on 4 July 1989): 'Rape is every act of sexual penetration of any nature and by any means, committed against a person who did not consent to it. Consent is especially absent when the act is forced by means of violence, coercion (threats, surprise) or deception or enabled by an inferiority/infirmity (Dutch text: ''onvolwaardigheid''; French text: ''infirmité'') or a physical or mental deficiency on the part of the victim.'</ref>
*2000s: [[United Kingdom]]'s constituent countries:
**2003: [[England and Wales]]<ref name="AI2018"/>{{rp|11}}
**2008: [[Northern Ireland]]<ref name="AI2018"/>{{rp|11}}
**2009: [[Scotland]]<ref name="AI2018"/>{{rp|11}}
*November 2016: [[Germany]]<ref name="AI2018"/>{{rp|10}}<ref>[https://www.gesetze-im-internet.de/stgb/__177.html Strafgesetzbuch (StGB) § 177 Sexueller Übergriff; sexuelle Nötigung; Vergewaltigung]</ref>
*March 2018: [[Iceland]]<ref name="AI2018"/>{{rp|9}}
*May 2018: [[Sweden]]<ref name="AI2018"/>{{rp|9}}
*by October 2018: [[Montenegro]]<ref>'Paragraph 1 [of Article 204 of the Montenegrin Criminal Code] criminalises “anyone who performs sexual intercourse or a sexual act of equivalent nature without the person’s consent”. (...) Non-consensual sexual acts of a lesser nature seem to be, in principle, criminalised by Article 208.' {{Cite web |url=https://rm.coe.int/grevio-report-montenegro/16808e5614 |title=GREVIO Baseline Evaluation Report Montenegro |publisher=Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) |date=25 October 2018 |accessdate=15 May 2020}}</ref>{{rp|45}}
*[[Canada]]<ref name="New Zealand"/>
*[[Cyprus]]<ref name="AI2018"/>{{rp|9}}
*[[Luxembourg]]<ref name="AI2018"/>{{rp|9}}
*[[New Zealand]]<ref name="New Zealand">"New Zealand’s Crimes Act, 1961 s. 128 also defines rape essentially as penetration by penis without consent, while a sexual violation in general is defined as unlawful sexual connection without consent." {{Cite web |url=https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr14_01/p10.html |title=An Estimation of the Economic Impact of Violent Victimization in Canada, 2009 |publisher=Department of Justice of Canada |accessdate=2 May 2020}}</ref>

=== Countries with consent-based amendments pending ===
*[[Portugal]] (government intention since 2018).<ref name="AI2018"/>{{rp|9}} The January 2019 GREVIO report judged the 2015 amendment of Article 163 and 164 of the [[Penal Code of Portugal|Portuguese Criminal Code]] to be insufficient to comply to the Istanbul Convention.<ref>{{Cite web |url=https://rm.coe.int/grevio-reprt-on-portugal/168091f16f |title=GREVIO Baseline Evaluation Report Portugal |publisher=Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) |date=21 January 2019 |accessdate=15 May 2020}}</ref>{{rp|49}}
*[[Spain]] (government intention since 2018).<ref name="AI2018"/>{{rp|9}} A bill was approved by the Spanish government in March 2020,<ref>{{Cite news |url=https://www.independent.co.uk/news/world/europe/spain-rape-law-only-yes-means-yes-consent-bill-a9373256.html |title=‘Only yes means yes’: Spain plans new rape law to put more emphasis on consent |author=Zoe Tidman |work=The Independent |date=3 March 2020 |accessdate=30 April 2020}}</ref> the parliamentary debates on the exact wording were expected to take several months.<ref>{{Cite news |url=https://www.theguardian.com/world/2020/mar/03/spain-approves-draft-law-to-strengthen-convictions |title=Spain approves draft law to strengthen rape convictions |author=Reuters |work=The Guardian |date=3 March 2020 |accessdate=15 May 2020}}</ref>
*[[Denmark]] (government intention since November 2018, repeated in July 2019).<ref name="Ritzau"/> In April 2017, the [[Folketing|Parliament of Denmark]] rejected a consent-based bill, citing lack of evidence that a consent-based definition was needed.<ref name="AI2018"/>{{rp|9}} Another attempt failed in November 2018, but a new bill similar to the Swedish example passed in May 2018 gained supported in March 2019, and the new Danish government confirmed its intention to introduce such legislation in July 2019.<ref name="Ritzau">{{Cite news |url=https://www.thelocal.dk/20190711/danish-sexual-consent-law-likely-as-politicians-signal-support |title=Danish sexual consent law likely as politicians signal support |work=Ritzau/The Local |date=11 July 2019 |accessdate=30 April 2020}}</ref>
*[[Netherlands]] (government intention since May 2019)<ref>{{Cite news |url=https://www.rijksoverheid.nl/actueel/nieuws/2019/05/22/seksuele-intimidatie-en-seks-tegen-de-wil-worden-strafbaar |title=Seks tegen de wil en seksuele intimidatie worden strafbaar |work=Rijksoverheid.nl |publisher=Dutch Government |date=22 May 2019 |accessdate=30 April 2020 |language=nl}}</ref><ref>{{Cite news |url=https://www.trouw.nl/nieuws/de-wet-van-grapperhaus-tegen-seksueel-geweld-zal-niet-onmiddellijk-meer-vonnissen-opleveren~b8a140a4/ |title=De wet van Grapperhaus tegen seksueel geweld zal niet onmiddellijk meer vonnissen opleveren |author=Judith Harmsen |work=[[Trouw]] |date=22 May 2019 |accessdate=30 April 2020 |language=nl}}</ref>
*[[Finland]] (government intention since June 2019,<ref name="Koljonen"/> recommendation expected May 2020<ref>{{Cite news |url=https://www.theguardian.com/world/2019/sep/02/finland-under-pressure-to-revamp-rape-laws |title=Finland under pressure to criminalise lack of consent in rape laws |author=Daniel Boffey |work=The Guardian |date=2 September 2019 |accessdate=30 April 2020}}</ref>)
*[[Greece]] (included in yet to be introduced new penal code in June 2019)<ref>{{Cite news |url=https://www.theguardian.com/world/2019/jun/07/greece-in-u-turn-on-law-that-criminalises-non-consensual-sex |title=Greece U-turns over draft law redefining rape after fierce criticism |author=Helena Smith |work=The Guardian |date=7 June 2019 |accessdate=30 April 2020}}</ref>

=== Countries with mixed legislation ===
*2013: [[Croatia]]
** Sexual intercourse without consent accompanied by force constitutes rape, carrying a maximum penalty of 10 years imprisonment (art. 153 Croatian Criminal Code)<ref name="AI2018"/>{{rp|13}}
** Sexual intercourse without consent without force (e.g. when a victim is unconscious, intoxicated or asleep) constitutes a lesser offence, carrying a maximum penalty of 5 years imprisonment (art. 152(1) Croatian Criminal Code)<ref name="AI2018"/>{{rp|13}}
*January 2016: [[Austria]]
** Sexual intercourse committed by force, threat or deprivation of liberty constitutes rape, carrying a maximum of 10 years imprisonment (art. 201 Austrian Criminal Code)<ref name="AI2018"/>{{rp|13}}
** Sexual intercourse against a person's will constitutes a lesser offence, carrying a maximum penalty of 2 years imprisonment (art. 205a Austrian Criminal Code)<ref name="AI2018"/>{{rp|13}}

=== Legislation in the United States ===
{{Further information|Rape in the United States#Criminal punishment|Rape laws in the United States|Sexual assault in the United States military|Campus sexual assault#Prevention efforts}}
The [[United States]] do not have a uniform legal definition of sexual violence, as [[U.S. state|states]] may define this differently,<ref name="Koljonen"/> but on the federal level the [[Federal Bureau of Investigation|FBI]]'s [[Uniform Crime Report]] (UCR) amended its definition of rape on 1 January 2013 from the coercion-based "[[carnal knowledge]] of a female forcibly and against her will" to the consent-based "Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim", removing the requirements of force, the victim to be female, and the penetration to be vaginal.<ref name="FBI FAQ">{{cite web|url=https://www.fbi.gov/about-us/cjis/ucr/recent-program-updates/new-rape-definition-frequently-asked-questions |title=Frequently Asked Questions about the Change in the UCR Definition of Rape |publisher=Federal Bureau of Investigation |date=11 December 2014 |accessdate=1 May 2020}}</ref> Some U.S. states (or other jurisdictions such as [[American Samoa]]) recognise penetrative sex without consent by the victim and without the use of force by the perpetrator as a crime (usually called 'rape'). Other states do not recognise this as a crime; their laws stipulate that the perpetrator must have used some kind of force (physical violence (that results in demonstrable physical injury), threats against the victim or a third party, or some other form of coercion) in order for such nonconsensual penetrative sex to amount to a crime.<ref name="Tracy">{{Cite web |url=https://www.womenslawproject.org/wp-content/uploads/2016/04/Rape-and-Sexual-Assault-in-the-Legal-System-FINAL.pdf |title=Rape and sexual assault in the legal system |author=Carol E. Tracy, Terry L. Fromson, Jennifer Gentile Long, Charlene Whitman  |publisher=Women’s Law Project, AEquitas |date=5 June 2012 |accessdate=7 May 2020}}</ref> Similarly, some states (or other jurisdictions such as the [[Uniform Code of Military Justice|Military]]) recognise non-penetrative sex acts (contact such as fondling or touching a person's intimate parts, or exposure of a body or sexual activity) without consent by the victim and without the use of force by the perpetrator as a crime, while other states do not.<ref name="Tracy"/>