A brand new marketing campaign by non-profit Proper to Equality, in partnership with artistic company CPB London and actress and comic Emily Atack, has referred to as for the adoption of affirmative consent as a authorized normal in England and Wales.
The marketing campaign’s use of the slogan “I’m asking for it” obtained widespread criticism. It was labelled offensive by survivors of sexual violence, who pointed to using the phrase responsible girls for their very own sexual assault.
This has resulted in some re-messaging. Proper to Equality has launched additional promotional pictures with completely different slogans, similar to “solely sure means sure”.
However the marketing campaign’s purpose stays the identical: to alter the legislation in order that consent have to be given by means of clear phrases or actions indicating permission to interact in sexual exercise. Briefly, this modification would purpose to make a “sure” the proof of consent, fairly than the absence of a “no”.
Nonetheless, there are completely different approaches to affirmative consent in legislation, and they don’t seem to be with out their very own points. These can embody focusing consideration on the actions of complainants and overlooking the pressures that might result in a token “sure”. A greater possibility is likely to be to shift give attention to as to whether these accused in circumstances of sexual assault sought consent.
The present legislation
Present legislation in England and Wales defines consent as settlement by alternative, the place the individual has the liberty and capability to select. An individual might be responsible of a sexual offence the place the complainant didn’t consent and the accused didn’t moderately imagine they consented. In figuring out whether or not the accused’s perception was “affordable”, consideration will be paid as to whether the accused took any steps to search out out if the complainant consented.
However the legislation has been criticised for putting accountability on the complainant to disclaim consent. The belief could also be that consent is given except somebody provides clear indicators, both verbally or bodily, that they don’t consent to the encounter. This might be saying “no”, or pushing the opposite individual away.
A current analysis report from the College of Warwick has discovered that the remedy of rape circumstances by the Crown Prosecution Service consists of victim-blaming language and a give attention to the credibility of complainants forward of the behaviour of suspects.
And the applying of the legislation on this space is sophisticated by rape myths. A 2024 research by the Crown Prosecution Service itself discovered that one of the crucial widespread public perceptions of rape is that it entails bodily violence and is dedicated by a stranger.
In actuality, round 90% of sexual violence is dedicated by somebody recognized to the complainant. Solely half of the 18-24-year-olds within the research thought that an encounter can nonetheless be rape if the sufferer doesn’t resist or struggle again.
Positives – and pitfalls
Affirmative fashions of consent emphasise communication. They could require lively indicators of settlement earlier than an encounter is taken into account consensual.
The Proper to Equality marketing campaign defines affirmative consent as “an lively, voluntary, and mutual choice … given by means of clear phrases or actions”. It states that consent needs to be “clear and enthusiastic”, fairly than merely the absence of a “no”, and that this consent “will be withdrawn at any time, and can’t be obtained by expressed or implied power, threats, or coercion”.
Authorized techniques elsewhere on the planet embody facets of affirmative consent. In California, for instance, consent is outlined as “constructive cooperation in act or perspective pursuant to an train of free will”. In Iceland, it’s outlined as having been “expressed by free will”, and in Sweden as “voluntary participation”.
Beneath these definitions, consent is performative fairly than a way of thinking. There have to be lively indicators of settlement earlier than an encounter is taken into account consensual. Which means that if somebody is accused of sexual assault, their capability to argue that they believed the complainant consented on the premise of a scarcity of refusal is restricted.
Nonetheless, there’s a hazard that such formulations could unwittingly place consideration again on the actions of the complainant – to try to show that sure phrases or actions by the complainant meant “sure”.
What’s extra, a variety of pressures could lead somebody to offer a token “sure”, and this can be uncritically accepted by a jury.
A special strategy
One other strategy to affirmative consent is to alter how the legislation frames the actions of the accused.
In Northern Eire in 2019, conversations on reforming consent fashioned a part of the Gillen Assessment into sexual offences.
The overview didn’t suggest reforming the legislative definition of consent. But it surely advisable altering what constitutes an inexpensive perception in consent so {that a} jury is requested to think about whether or not the defendant did not take steps to search out out if the complainant consented.
Which means that as an alternative of inserting accountability on the complainant to offer affirmative consent, consideration is on whether or not the defendant sought consent.
I imagine, based mostly on my analysis on sexual violence in Northern Eire, that this proposal has the potential to shift narratives of accountability in rape trials.
Specializing in a failure to acquire consent supplies the prosecution with the chance to query the accused on cases in the course of the encounter the place additional enquiries into consent might have been anticipated, and, the place the accused failed to take action, to ask them to account for this failure.
To harness the potential of this suggestion, nevertheless, my interview information means that we want extra conversations about consent in order that communication, in its varied kinds, is seen as a standard and pure a part of wholesome sexual relations.
