An international legal response to #MeToo, rape and sexual abuse is needed

Thousands in Pamplona protest against rape sentence. Villar Lopez/EPA

An international legal response to #MeToo, rape and sexual abuse is needed

Rape and other forms of sexual abuse are a worldwide epidemic. The World Health Organisation (WHO) estimates that 35% of women worldwide have experienced physical or sexual intimate partner violence or non-partner sexual violence. And according to UNICEF, around 120m girls worldwide have experienced “forced intercourse or other forced sexual acts” at some point in their lives.

Over the past year, there has been mass mobilisation against these forms of abuse. From #MeToo and #TimesUp in Hollywood, to #IBelieveHer in Northern Ireland and #Cuéntalo in Spain, women around the world are sharing their stories on social media, organising protests and expressing their frustration with the criminal justice systems of their respective jurisdictions.

Yet despite this increased attention, laws around the world continue to fail victims of rape and sexual abuse. It is time this, too, changed.

Inadequate laws

A 2017 report by Equality Now reviewed the laws on sexual violence of 82 jurisdictions around the world. While rape has been understood as a crime against an individual’s sexual autonomy since 2003 in the international human rights arena, the report found that it continues to be based on patriarchal ideals in many countries.

For example, rape is treated as a moral crime in 15 jurisdictions, including Afghanistan, Belgium and China, and marital rape is not punished in 10 of the jurisdictions surveyed, including India, Indonesia and Jordan. The perpetrator can also escape punishment if he marries the victim in nine jurisdictions, such as Bahrain, Iraq and Jordan, or if he reaches a settlement with the family in 12 jurisdictions, including Belgium, Croatia and Iraq.

Provisions such as these demonstrate a deep misunderstanding of the harm of rape. They locate it in outdated perceptions of women based on their value as the property of men.

Further to this, the report noted burdensome corroboration laws in countries such as Peru and Yemen requiring, for example, a medical examiner’s report before the burden of proof can be discharged. This requirement suggests a distrust of women and is reminiscent of Sir Matthew Hale’s problematic 17th-century opinion that rape “is an accusation easily to be made and hard to be proved”.

Consent

Impoverished understandings of rape and sexual abuse are linked to concerns over the role of consent versus a focus on force in defining these crimes.

This is a particularly contested aspect of rape law that is complicated by the existence of myths and stereotypes surrounding what amounts to “real rape”, often perceived as the young virginal women attacked and overpowered by a stranger.

In 2016, for example, the German justice minister Heiko Maas criticised the then definition of rape, which required that the act take place by force, among other exploitative factors. Maas asked: “Does a woman need to be killed or severely beaten to prove she did not consent to rape?”

Similar concerns have been raised in 2018 due to the failure in April of a Spanish court to convict five men of raping a young woman. The court instead found them guilty of the lesser crime of sexual abuse, as the latter does not require proof of violence or intimidation.

The international position

According to international human rights law, domestic states are required to prosecute any non-consensual sexual act.

In 2003, for example, the European Court of Human Rights surveyed international and domestic law on rape, noting a “universal trend towards regarding lack of consent as the essential element of rape and sexual abuse” and criticising any “rigid approach” to the crime that requires proof of force or resistance.

In 2010 the Committee on the Elimination of Discrimination Against Women reinforced this position. It explained that rape should be defined by either requiring the existence of “unequivocal and voluntary agreement” or requiring that the act take place in “coercive circumstances”.

The commentary attached to the 2011 Istanbul Convention, the Council of Europe’s convention against violence against women and domestic violence, further clarifies the position. International law now requires that where a definition of rape does not explicitly mention consent, the definition must interpreted as including the notion of a lack of freely given consent.

But the difficulty with this, as evidenced in Spain, is that narrow interpretations of what constitutes force continue to hinder the application of definitions of rape based on violence or force.

Keeping consent central

Many argue that it is therefore more desirable to define rape in terms of consent instead of in terms of force or coercion. This is not to say the consent threshold is perfect. Indeed, definitions centred on consent often require proof that the perpetrator did not reasonably believe the victim consented – such as in the United Kingdom, New Zealand and Australia. What amounts to reasonable belief is a contested issue and often invites scrutiny of the victim’s behaviour, as opposed to focusing on the perpetrator.

For instance, although resistance is not required to demonstrate lack of consent, this is a common defence strategy used to undermine the complainant’s account and attach “reasonableness” to the actions of the perpetrator.

But there has been a recent shift in some jurisdictions to what has been described in international human rights law as the “equality approach” to consent. This approach begins by examining not whether the complainant said “no”, but whether they said “yes”.

In this case, reasonable belief in consent cannot be established unless the perpetrator actively sought and obtained positive consent.

Iceland has recently introduced a definition of consent that requires consent to be “expressed”, and similar reforms are expected in Sweden.

Efforts to formulate a more positive affirmative model of consent will not solve all of the problems associated with the crime. But it might go some way to challenging the “real rape” stereotype as well as the problematic attitudes surrounding what does and does not amount to appropriate behaviour that are at the heart of movements such as #MeToo.