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

Dowds, The Conversation, May 4, 2018

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.
despite this increased attention, laws around the world continue to fail
victims of rape and sexual abuse. It is time this, too, changed.
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.
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locate it in outdated perceptions of women based on their value as the property of
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”.
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
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?”
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.
international position
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
, 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.
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.
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
” 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.
has recently introduced a definition of consent that requires consent to be
“expressed”, and similar reforms are expected in Sweden.
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.