Editing Sexual consent (section)

=== 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}}