Consent is Active, Not Passive
July 2016. An 18 year old woman is walking down the street in Pamplona after having participated in the annual Running of the Bulls Festival. Upon meeting a group of five men she was sexually penetrated 9 times without contraceptives in a span of approximately 20 minutes. The men posted videos and pictures of the incident in a WhatsApp group they had called ‘La Manada’, meaning ‘The Wolf Pack’ in English.
April 2018. The members of La Manada were sentenced by the Navarre court to 9 years of prison, instead of the 20+ years the prosecution had been aiming for; They were convicted for sexual assault instead of sexual aggression, which is the more severe form of offences against the sexual liberty of a person. The latter is more commonly known as rape and may be aggravated in case of gang rape. The ruling was based on the lack of one of two elements required for an act of sexual misconduct to constitute the typified crime of sexual aggression: ‘violence’ or ‘intimidation’.
The victim’s behaviour was used as an indicator to determine the nature of the act. The defence argued that the woman had consented to the sexual act due to footage showing her staying still and keeping her eyes shut. Fact is she did not demonstrate any signs of refusal by using force to defend herself. Such an attempt of self-defence could raise the risk of severe physical injuries at least, considering the fact that one woman was facing five men. Nevertheless, if she had used or attempted to use force, the element of violence – physical violence as required by the Spanish Criminal Code - would have been present and the act would have been ruled one of sexual aggression. As a result, at least three to six more years of incarceration would have been added to the offenders’ sentences. So, because the woman was probably either too weak and scared to defend herself or strong and brave enough not to, the gravity of the actual criminal conduct was diminished.
The second element required by the Spanish Criminal Code to constitute sexual aggression is ‘intimidation’. The judgement defines intimidation in accordance with Spanish case law to consist of “the threat or the announcement of a serious harm that is in the future and credible, if the victim refuses to participate in a determined sexual act”. The question remains of what exactly is meant by this definition. The three judge panel interpreted this to require the actual vocalisation of a threat. The mere context of the five men pressuring a woman to have sex with them in a confined space and in the middle of the night was not sufficient to constitute the element of intimidation. The judges did, however, rule that the men had acted from a position of superiority, which was decided to have been an essential instrument to force their victim.
While the victim continuously claimed to not have given consent, the judgement seems to be more focused on the fact of her not having demonstrated dissent. According to the victim she was in a state of shock, preventing her from reacting to the situation. Instead she closed her eyes, passively letting it all happen. One of the three judges dissented from the opinion and had argued for the acquittal of all the men from all charges with the exception of the theft of the woman’s phone; He believed her passivity to be sufficient consent.
The judgement was made as in accordance to the Spanish law. However, many human rights organisations were disappointed as the Manada case could have presented a valuable opportunity to change the law. Sweden, for instance, has just made a change to its Criminal Code in the beginning of 2018. The new legislation does not require neither violence nor intimidation in order to constitute the typified crime of sexual aggression or rape, but simply the lack of expressly given and clear verbal or physical consent. The legislation is built on the premise that everyone has an unconditional right to personal and sexual integrity and sexual self-determination—it is considered a consent-based legislation. Thus, under Swedish law the victim’s behaviour, passivity, would have constituted clear lack of consent and hence, rape. “Passivity cannot be read as consent”, said Dr. Anne Moller, the head of the rape centre at Sodersjukhuset Hospital in Stockholm. She further explained: “The expectation that there should bruises and clear evidence of physical resistance is also something this legislation moves away from.”
The Swedish reform is a reaction to the Istanbul Convention— The Council of Europe Convention on preventing and combating violence against women and domestic violence. It was ratified by both Spain and Sweden in 2015 and is the first legally-binding tool to combat violence against women. The convention obligates parties to criminalise a variety of conducts, such as stalking, psychological violence, sexual harassment, forced abortion, and many more. In regards to rape, parties must criminalise the intentional conduct of “engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object”. Hence, neither violence nor intimidation are considered as necessary for a conduct to typify the crime of rape. Instead, simply the lack of consent and the sexual act itself are sufficient; As expected the sentence in the Manada Case caused a heated discussion in the European Parliament, as MEPs were criticising Spain for not having implemented the Istanbul Convention. The Catalan MEP Ernest Urtasun and the Spanish MEP Rosa Esterás both demanded the Spanish legislation to change; Many other MEPs expressed their dissent towards the judgement.
Apart from Sweden, Iceland also made changes to its laws on sexual crimes to render them more consent-based. Other countries with consent-based legislation include the UK, Ireland, Cyprus, Belgium, and Germany—Finland and Denmark are considering similar adaptations to their codes. However, the Swedish legislation has taken the legal fight against sexual crimes a step further by introducing two new crimes: negligent rape and negligent sexual assault. One of the main issues with determining whether a sexual act was rape or not is the matter of proving the required intent of a person to commit the crime of rape, which requires the alleged rapist to be aware that they are lacking consent. Thus, negligent rape and negligent sexual assault create a wider range of possibilities to prosecute someone, as it is only necessary to show that the offender has not taken all the necessary steps to determine whether or not consent was given. Essentially, this means that one needs to always ascertain that the other person is giving them consent to have sexual relations. As a consequence, for instance, having sex with someone who considered too drunk to be able to give consent, could hold the other person criminally liable.
Because proving the lack of consent can be tricky, looking for bruises or other signs of violence is a useful method to proof rape. Nevertheless, while this does facilitate the process of convicting someone for rape, it does not accurately represent reality. The Manada Case is the perfect example of that. Violence and intimidation should not be essential elements to establish the crime of rape. Nevertheless, the development of the legal landscape in this area is progressing along with people’s mindsets. With Sweden being at the forefront of this movement, backed by the Istanbul Convention, various human rights advocate groups and women’s rights movements, Spain could join the movement: The Spanish Supreme Court could potentially overturn the judgement upon appeal and the Spanish legislation be adapted.
References
https://www.bbc.com/news/world-europe-43915551
https://www.nytimes.com/2018/04/26/world/europe/spain-pamplona-gang-rape-verdict.html
https://www.theguardian.com/world/2018/apr/26/protests-spain-five-men-cleared-of-teenagers-gang-rape-pamplona
https://www.theguardian.com/world/2018/apr/26/protests-spain-five-men-cleared-of-teenagers-gang-rape-pamplona
https://elpais.com/elpais/2018/04/27/inenglish/1524824382_557525.html
https://elpais.com/elpais/2018/07/11/inenglish/1531318840_225983.html
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/signatures
https://rm.coe.int/168046031c
https://www.elnacional.cat/en/news/european-parliament-wolf-pack-sentence_264270_102.html
https://www.government.se/press-releases/2018/04/consent--the-basic-requirement-of-new-sexual-offence-legislation/
https://www.loc.gov/law/foreign-news/article/sweden-parliament-makes-lack-of-consent-the-basis-for-rape-charges-introduces-criminal-liability-for-negligent-sexual-assault/
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