Should we think of rape as a sexual relationship to which one of the partners did not consent or as a sexual relationship imposed by force? Should the law be placed from the point of view of the victim, by requiring that they have clearly and freely given their consent, or from the point of view of the perpetrator, by requiring, like the French penal code, that he used the “violence, coercion, threat or surprise” ? Some European countries have adopted the first approach, others the second – and their disagreements are so deep that Brussels failed in February to unify the criminal definition of rape in Europe.
On March 8, 2022, the European Commission presented a draft directive which, while prohibiting forced marriages, genital mutilation or sexual harassment, established for the first time a definition of rape common to the twenty-seven countries of the Union. . Sitting on the notion of “non-consent”this text, which resumed the Istanbul Convention of the Council of Europe, was based on a simple principle: “Only yes means yes”. To characterize rape, it was enough to establish the victim’s lack of consent – whether or not the rapist used means of coercion.
Because the agreement of both partners was at the heart of this European definition of rape, the directive detailed the conditions guaranteeing freedom of consent: this lost all validity when the woman was in a “physical or mental state” preventing him from “form a free will” – unconsciousness, drunkenness, sleep, illness, physical injury or disability – and it could be canceled “at any time during the act”. THE “silence of the woman, her lack of verbal or physical resistance or her past sexual behavior” could not, according to the text, pass for a form, even degraded, of consent.
The question of consent
Greece, Italy, Belgium, Luxembourg, Croatia, Sweden, Ireland, Portugal, Spain, Finland and Slovenia supported this paradigm shift. For these EU countries as for Denmark, Iceland, the United Kingdom, Switzerland and Canada, rape, when the victim is in a state of astonishment, is not necessarily accompanied by physical brutality. To effectively combat sexual violence, concludes researcher Catherine Le Magueresse, we must therefore ask the person who initiates a sexual relationship to “ensure positive consent” of his or her partner rather than“require the victim to resist”.
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