Only Yes means Yes: Changing sexual offence legislation in Europe

, by Hannah Luisa Faiß, Translated by Nora Teuma

All the versions of this article: [Deutsch] [English]

Only Yes means Yes: Changing sexual offence legislation in Europe
A rape case in Pamplona led to numerous protests against current Spanish sexual offence legislation.

New Year’s Eve in Cologne, a gang rape in the Spanish city of Pamplona and the #metoo movement: Various assaults in Europe and the international debate on #metoo sparked renewed discussion on criminal law regarding sexual offences. In Spain and Sweden, the recent incidents brought about reforms of sex crime legislation. With Sweden’s reform celebrated as a progressive role model for other countries, Spain now seeks to follow suit. In Germany, in turn, the current code – last revised in 2016 – remains in effect.

In May this year, as a consequence of the #metoo debate, a new law was passed in Sweden, entering into force on 1 July 2018: The principle is “Yes means Yes”, hence every sexual act becomes a criminal offence if there is no mutual consent. Passivity can no longer be understood as agreement. The Swedish government expects the new legislation to allow for more cases of sexual abuse and rape to be judged appropriately.

Spain follows the Swedish example

The case of the gruesome rape in Pamplona during the popular San Fermín festival in 2016 initiated a new debate about a change of Spanish sex crime legislation. Five men had raped an 18-year-old woman and filmed their deeds. They were sentenced to nine years imprisonment for sexual offence, however not for rape. Had they been sentenced for the latter, the punishment would have been considerably more severe. The relatively low penalty caused dismay amongst the Spanish population and thousands demonstrated against the decision.

The responsible court did not consider the offence to be rape as the Spanish legislation at the time required violence to be exercised or threatened for such a verdict. Although it became evident from the video recorded by the offenders that the woman screamed and was terrified, the judges did not confirm the use of violence and were unable to charge them for rape. The outrage and incomprehension of the public and of many politicians likewise were large, encouraging the social democratic government now to modify the legal situation. The Swedish model serves as orientation towards a principle according to which sexual acts that evidently lack consensus are considered as rape. Consent must be voiced either verbally or nonverbally through body language.

Germany holds back

In Germany on the contrary, sex crime legislation was last revised in 2016. At that time, the government unanimously adopted the “No means No” policy: Rape can be said to occur if the affected person says “No”. Opponents of this version already expressed their concern that “it went too far and implies more difficulties of proof”. The parliament rejected the critique and considered the reform as a success in protecting the personal will by law. Previously, as it is the case in Spain currently, rape would only be attested if the offenders threatened or used violence. Critics who believe the law does not go far enough assert that a mere eight percent of all reported cases of rape result in criminal convictions. Numerous assaults are thus not prosecuted, which clearly is an excessively high quota.

It remains to be hoped that more states join the movement and adapt their legislative provisions to reality: Every third adult woman in Europa has experienced physical or sexual violence of some sort, one in twenty was raped. These numbers alone are shocking already, but the proportion of victims reporting the crime is – at about twenty percent – even more distressing. The reasons are manifold. Many feel ashamed and try not to identify sexual coercion as such, others wish to protect those around them. Another important reason for not reporting is that victims cannot be certain of appropriate punishment for their offenders. In this regard, a clearer legal situation that only accepts “Yes” as consent can help.

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