Sexual consent in law

Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether or not the alleged victim had freely given consent, and whether or not 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.
In legal theory, there are two main models in legislation against rape and other forms of sexual violence:
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.
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, 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.
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):
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:
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".
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 (Association of Southeast Asian Nations), comprising 10 Asian states, adopted the Declaration on the Elimination of Violence against Women and Elimination of Violence against Children in ASEAN on 9 October 2013. In its ASEAN Regional Plan of Action on the Elimination of Violence against Women (ASEAN RPA on EVAW), adopted in November 2015, "rape" was described as "engaging in the non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object, including through the use of physical violence and by putting the victim in a situation where she cannot say no or complies because of fear"; "attempted or completed sexual acts with a woman without her consent" and "intimate touching without consent" were also recognised as forms of "sexual violence". The ASEAN RPA on EVAW called on all 10 member states to criminalise marital rape; 4 of them had already done so as of February 2016. De Vido (2018), who likened it to the Istanbul Convention, stated: "The framework extremely promising, although the action plan is a non-binding act and the implementation relies on an intergovernmental body."
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 and Article 8 of the European Convention on Human Rights. 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."
The Council of Europe's 2011 Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) contains a consent-based definition of sexual violence in Article 36. This mandates all Parties that have ratified the convention to amend their legislation from a coercion-based to a consent-based model. Since the Istanbul Convention entered into force in August 2014, some Parties have fulfilled their obligation for sexual violence legal reform; as of April 2020, 26 Parties had yet to do so, while 12 signatories still needed to ratify the Convention first. Belgium already had a consent-based definition since 1989, the Republic of Ireland already since 1981, with a further amendment passed in February 2017. The United Kingdom's four constituent countries England and Wales (one jurisdiction), Northern Ireland and Scotland separately introduced consent-based legislation in the 2000s despite the UK not having ratified the convention as of 2018. 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; this is known as the "two-tiered approach".
As of January 2024, the European Union (EU) is in the process of drafting a directive on combating violence against women and domestic violence, in effect an EU-wide application of the principles of the Istanbul Convention (already signed by all member states and the Union itself, and ratified by the vast majority). In 2023, the European Parliament approved a concept text for the directive containing a definition of rape based on a lack of consent. Next, a qualified majority of member states within the European Council was required for its adoption; as of early January 2024, 12 states were in favour, 10 were opposed and 5 yet undecided. If passed, the directive could lead to a harmonisation of legislation across the Union following a consent-based approach to sex crimes.
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 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 (...)". Similarly, in the Declaration on Violence against Girls, Women, and Adolescents and Their Sexual and Reproductive Rights (19 September 2014), the MESECVI Committee (which monitors compliance to the Belém do Pará Convention) defined "sexual violence" as "actions with a sexual nature committed with a person without their consent, which besides including the physical invasion of the human body, may include acts that do not imply penetration or even any physical contact whatsoever," referring to the Miguel Castro-Castro Prison v. Peru judgement. It listed "display of the body without the victim's consent" as one of several "forms of sexual violence against women [which] are still insufficiently documented and punished throughout the entire region [the Americas]", and invoked the illegitimate inferrals of consent listed in Rule 70 of the ICC's Rules of Procedure and Evidence.
Consent-based provisions in some criminal codes of some former British colonies have descended from Section 375 of the British Colonial Penal Code of 1860.
In this situation, called the "Two-Tiered Approach" by the May 2020 UN Women EGM report, countries have two separate laws against sexual violence: one for sexual violence committed with coercion, one of sexual violence committed without coercion but also without consent; the latter counts as a lesser crime, and is punished less severely. Both the EGM report and Amnesty 2018 report cited Austrian legislation as an example of this two-tiered approach, and have criticised it, because they argued survivors ought to be given the same level of legal protection. This is different from countries that cover all sexual violence within a single law based on a lack of consent, but may add extra penalties if the nonconsensual sexual act was accompanied by some form of coercion.
All 55 sovereign states of Africa are members of the African Union; except Botswana, Egypt, and Morocco, all have signed the Maputo Protocol, which requires member states to effectively prohibit "all forms of violence against women including unwanted or forced sex". The following states have not yet introduced consent-based legislation:
All 35 sovereign states in the Americas (Cuba's status being unclear) are members of the Organization of American States. Excluding Canada, Cuba and the United States, 32 of them have signed and ratified the Belém do Pará Convention, which the Inter-American Court of Human Rights in 2006 ruled to be consent-based, with its follow-up mechanism MESECVI in 2014 declaring the same. The following states have not yet introduced consent-based legislation:
Asia does not have a continent-wide legal system. ASEAN, comprising 10 Asian states, signed the 2013 Declaration on Violence against Women and Children. The 2016 ASEAN RPA on EVAW recognised several forms of sexual violence based on a lack of consent, and called on all 10 member states to criminalise marital rape; 4 of them had already done so as of February 2016. The following states have coercion-based legislation:
The Penal Code of Japan was revised in June 2023 to define many scenarios and circumstances in Article 176 (including nut not limited to coercion used by the suspect) that may render a person incapable of consenting to various sexual acts described in Article 177 ("Nonconsensual sexual intercourse etc."). There is no freely given or affirmative consent. Before June 2023, Article 177 described "forcible sexual intercourse" as "A person who, through assault or intimidation forcibly engages in vaginal intercourse, anal intercourse or oral intercourse (...) with another person". Article 178 further implied that victims of sexual assault were required to resist their attackers.
However, even if the composition requirements have changed and have been broadened than before, it does not change that it's not guilty without evidence. So there are voices calling for the expansion of victim support is required, such as strengthening the evidence preservation system of test kits to leave objective evidence, medical institutions that can collect evidence 24 hours a day, and one-stop support centres.
In addition, since the burden of proof is not different from that of the prosecution. So there are voices calling for a polite and careful investigation to visualise the crackdown to prevent false accusations, the right to join lawyers, and shorten the arrest period.
Japanese lawyers expressed concern that the eight newly prepared articles are a mixture of clear requirements and ambiguous requirements, adding that "the subject of punishment has virtually widened and could be framed".
Article 297 (Rape) of South Korea's Penal Code states: "A person who, through violence or intimidation, has sexual intercourse with a female". Article 298 (Indecent Act by Compulsion) states: "A person who, through violence or intimidation, commits an indecent act on another". Article 299 (Quasi-Rape, Quasi-Indecent Act by Compulsion) states: "A person who has sexual intercourse with a female or commits an indecent act on another by taking advantage of the other's condition of unconsciousness or inability to resist", implying that in other circumstances a victim should resist a sexual assault until overcome by the perpetrator's superior force. For this reason, criticism has been raised that it's difficult to punish forced sexual activity without consent. Although Supreme Court of Korea has moved closer to consent-based with the precedent that looks more broadly at the definition of "assault or intimidation", some lower court judges continue to rule against that precedent.
The Supreme Court of Korea ruled that marital rape (described as "forced sex with a spouse") was illegal in 2013.
Actually, several attempts have been made to revise the criteria for rape from the presence or absence of "assault or intimidation" to "consent", because of the criticism about the current Penal Code of South Korea, but they have failed.
The opponents of the law's amendment have raised concerns that the number of people affected by False accusation of rape will increase. In fact, criticism has been raised that the principle of presumption of innocence is not properly observed in South Korea, and the damage caused by the false accusation of sexual violence actually exists. In addition, false accusation of sexual violence has increased rapidly in South Korea. The opponents of the revision of the law argue that false accusation of sexual violence will be easier if the law is revised.
Most sovereign states in Europe are members of the Council of Europe (except for Belarus; the disputed Vatican City; and the transcontinental states of Russia and Kazakhstan, see Asia) and have signed the Istanbul Convention (except Azerbaijan), and, once ratified, have the legal obligation to adopt consent-based legislation. The following states have yet to do so:
These European countries currently have coercion-based legislation, but have ratified the Istanbul Convention, which obligates them to introduce a consent-based definition of sexual violence. Therefore, both the legislative and executive branches of government in these countries have been making efforts to draft legislation that complies with the Convention.
The United States do not have a uniform legal definition of sexual violence, as states may define this differently, but on the federal level the 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. 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. Similarly, some states (or other jurisdictions such as the 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. In 2024, the United States federal Department of Health and Human Services banned hospitals from performing non-consensual breast, pelvic, prostate, and rectal exams for "educational and training purposes" by medical students, nurse practitioners, or physician assistants.
State laws have given various definitions of what constitutes sexual consent, and which role it plays in determining whether or not an offence has been committed.
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:
The Catholic Church, governed by the Holy See in Vatican City, updated Book VI of its 1983 Code of Canon Law in June 2021 (taking effect on 8 December 2021) for clearer rules on numerous offences, including sexual ones. The revision was the result of a long process commenced in 2009 to better prevent and address Catholic Church sexual abuse cases, mostly committed by clerics against underage children entrusted in their care, but also against vulnerable adults, or other sexual offences the Church regards as sinful due to breaching the clerical celibacy in the Catholic Church. Pope Francis, archbishop Filippo Iannone, and other officials stated that bishops had been too lenient in penalising offenders in the past, in part because of the vagueness of canon law, and formally introduced laicization as a penalty for certain sexual offences.
In Catholic theology, the Ten Commandments are numbered so that the sixth commandment is "Thou shalt not commit adultery". The Catholic Church's interpretation of the sixth commandment is much broader than just adultery (extramarital sex), and concerns a set of so-called "offences against chastity". The revised provisions on sexual offences are derived from this broad interpretation of the sixth commandment. The provisions in Canon 1395 §3. are coercion-based, as they require evidence of the use of "force, threats or abuse of his authority", while Canon 1398 §1. describes sexual offences in which the victim was deemed incapable of consenting (because of "habitually [having] an imperfect use of reason"). There is no freely given sexual consent for people deemed capable of consenting.
Canon 1395 §3. states:
Canon 1398 §1. states:
In June 2020, the Swedish National Council for Crime Prevention (Bra) reported that the number of rape convictions had increased from 190 in 2017 to 333 in 2019, a rise of 75% after Sweden adopted a consent-based definition of rape in May 2018; reports of rape rose by 21% in the same period. Furthermore, the introduction of the new offence of 'negligent rape' – for cases where courts found consent had not been established, but that the perpetrator had not intended to commit rape – led to the conviction of 12 people. Bra was positively surprised by this greater-than-expected impact, saying "this has led to greater justice for victims of rape," and hoping it would improve social attitudes towards sex. Amnesty International regarded the results as evidence that other countries should also adopt consent-based legislation in order to protect (potential) victims of sexual violence better.
Contrary to what some opponents of consent-based legislation have argued, "recent research in countries such as Britain where sex without consent is considered rape, shows that false accusations have not gone up dramatically." Oxford legal professor Jonathan Herring stated in January 2021 that the main remaining problems in the UK are proving "beyond all reasonable doubt" the victim did not consent, and that many juries "still believe in 'rape myths', eg. that the victim who is drunk or in a club is consenting to sex."
Most pre-modern laws were concerned with sexual offences as disturbances of the social order, especially of what a man might do to/with a woman he was not married to, regardless of whether she consented to it or not. In some rare cases, however, pre-modern laws did consider the (lack of) consent of a person (particularly a woman) involved a relevant factor in determining whether or not a sexual offence had occurred. Examples include §190 and §191 of the Hittite laws (also known as the 'Code of the Nesilim'; developed c. 1650–1500 BCE, in effect until c. 1100 BCE), and §12 of the Middle Assyrian Laws (developed c. 1450–1250 BCE; this one involves a combination of lack of consent on the one hand, and force on the other).
While progressive rape legislation is favoured by most legal experts and human rights instruments, as it offers higher protections to rape survivors than coercion-based legislation, there are numerous enforcement challenges related to consent-based rape legislation.
There are currently consent-based jurisdictions which do not define consent at all within their legislation, which has led to issues such as clothing worn being interpreted as 'consent'. Furthermore, in some legal systems, consent is not solely based on a person's clear agreement but also on the "contribution of the victim", i.e. how their actions, behavior or perceived level of participation or engagement are considered as contributing factors to determining whether consent was given. This approach blurs the distinction between a purely consent-driven system and one that factors in other influences, like coercion. Additionally, some jurisdictions allow for the consideration of the 'reasonable belief' of the offender of consent by the victim, which limits the effectiveness of such legislation.
Furthermore, there is the issue of which concept of 'consent' should be implemented. For example, scientific studies have been strong proponents for a holistically viewed definition which includes contextual cues and interpersonal dynamics. However, this may be too broad for effective enforcement of consent-based legislation due to challenges with legal certainty, a principle which holds that the law must provide those subject to it with the ability to regulate their conduct with certainty. On the other hand, the interpretation of consent in certain legal jurisdictions is too narrow, as it encompasses solely verbal consent.
Rape myths are a heavily discussed barrier to effective enforcement of rape legislation in general. However, consent-based legislation is particularly vulnerable to the potential negative consequences that such myths may have on its enforcement. The prevalence of such myths in society poses a challenge for the enforcement of consent-based rape legislation. Firstly, they are a large problem in jury trials; as misperceptions of victim behaviour often lead to assumptions of 'false allegations'. Secondly, such myths and false stereotypes are present in law enforcement as well as in other actors within the criminal justice system. This has numerous negative effects including prejudiced filtering out of rape complaints, deeming 'simple rape' cases as 'unfounded' and promoting the lack of credibility of victims through skewing false allegation statistics. This prejudice within the criminal justice system against the "word of a woman" creates a great barrier to the effective enforcement of rape legislation, but particularly consent-based, as the latter often results in "he-said, she-said" type scenarios.
Another primary barrier to the effective enforcement of consent-based rape legislation concerns issues with the criminal justice system itself. Rape survivors are often wary of filing a complaint and participating in a trial. Contrary to the stereotype of rape survivors mainly wishing for retributive justice, several surveys have found a desire to protect others as the primary reason for reporting their offenders. Furthermore, many rape survivors face great personal obstacles within a trial setting: often being berated in aggressive cross-examinations, humiliated with inappropriate and irrelevant questions and intimidated by the assailant's friends and families in the courtroom. This dissuades victims from coming forward and filing complaints. Thus, in recent years, there have been attempts to shift more towards focusing on preventative means of reducing rape such as college bystander trainings.