Consent

Legislation should define consent as unequivocal and voluntary agreement. 

• Legislation should define consent as unequivocal and voluntary agreement to sexual contact of both or all parties to the contact. For example, the Crimes Act (1900) of New South Wales, Australia, states the following:              

2) Meaning of consent A person "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

• Further, consent should be addressed in terms of the environment surrounding the decision. (See: M.C. v Bulgaria, app. 39272/98, European Court of Human Rights, 4 December 2003.)The decision should be made without force, the threat of force, coercion, or taking advantage of a coercive environment. (See: Amnesty International, Rape and Sexual Violence: Human Rights Law and Standards in the International Criminal Court (2011), available in English and Spanish). The United Kingdom’s approach is to state that “…a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” See: Sexual Offences Act (2003) of United Kingdom, Article 74.

• Drafters should frame the issue of consent in a way that does not re-victimize the survivor. The accused should be required to establish the steps taken to ascertain whether the survivor was legally able to consent and in fact did consent. (See: UN Handbook 3.4.3.1.) Proof of lack of consent is very difficult if a survivor is not physically injured. The difficulty increases if the complainant/survivor knows the perpetrator. (See: Model Strategies p. 19.) 

• A number of states include provisions describing circumstances in which, by legislative definition, consent is immaterial. These should include cases where the survivor lacks capacity to give consent due to natural, induced, or age-related incapacity, is a minor or disabled, the accused is a psychotherapist or clergy and the assault occurred in a psychotherapy or clergy counseling session or in the context of an ongoing psychotherapist-patient or clergy-advisee relationship, and other contexts which involve the abuse of a position of authority, such as in a correctional facilityor a school setting.

• Legislation should also provide that any list of these circumstances should not be limited to those described in the statute.

Example: The Sexual Offence Special Provisions Act (1998) of Tanzania includes the positions of traditional healer and religious leader as positions of authority. Part I, 4 (3) (d) and (e).

Consent under coercive circumstances

Legislation on consent under coercive circumstances should describe a broad range of circumstances. It should reflect situations where the perpetrator used coercion, creates fear of violence, applies duress, psychological oppression, or abuses his power. Coercion can also occur by virtue of being in a coercive environment, such as detention. (See: Amnesty International, Rape and Sexual Violence: Human Rights Law and Standards in the International Criminal Court  (2012).) Coercion can cover a wide range of behaviors, including intimidation, manipulation, threats of negative treatment (withholding a needed service or benefit), threats toward third parties, blackmail, and drug-facilitated sexual assault.

For other examples of legislation on coercive circumstances, see: the Criminal Code (1974) of Papua New Guinea, Section 347A; the Sexual Offences Act (2003) of Lesotho, Part I, 2 and Part II 6; the Sexual Offences Act (2003) of United Kingdom, Article 61.

See: the UN Handbook 3.4.3.1; Consent, Force and Coercion, StopVAW, The Advocates for Human Rights; and What is Sexual Assault, StopVAW, The Advocates for Human Rights.

Jury instructions on consent

Many states include a provision in their legislation that states that the judge in a relevant case must instruct the jury regarding the issue of consent.

• For example, the Criminal Code Act (1983) of the Northern Territory of Australia states:

192A Direction to jury in certain sexual offence trials
In a relevant case the judge shall direct the jury that a person is not to be regarded as having consented to an act of sexual intercourse or to an act of gross indecency only because the person:

(a) did not protest or physically resist;
(b) did not sustain physical injury; or
(c)  had, on that or an earlier occasion, consented to:

(i) sexual intercourse; or
(ii) an act of gross indecency, whether or not of the same type, with the accused.

• The Crimes Act (1858) of Victoria, Australia, includes the following provisions in its statute on jury direction on consent:

“…(d) that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement;
(e) that the jury is not to regard a person as having freely agreed to a sexual act just because-

(i) she or he did not protest or physically resist; or
(ii) she or he did not sustain physical injury; or
(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person.” Section 37AAA.

Investigation

• Legislation should provide for mandatory investigation of all sexual assault incidents.
• Legislation should require police to make written reports of all incidents of sexual assault.