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 accountable ladies 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, equivalent to “solely sure means sure”.
However the marketing campaign’s intention stays the identical: to vary the regulation in order that consent have to be given by clear phrases or actions indicating permission to interact in sexual exercise. Briefly, this alteration would intention to make a “sure” the proof of consent, quite than the absence of a “no”.
Nonetheless, there are completely different approaches to affirmative consent in regulation, and they don’t seem to be with out their very own points. These can embrace focusing consideration on the actions of complainants and overlooking the pressures that would result in a token “sure”. A greater choice could be to shift deal with as to whether these accused in instances of sexual assault sought consent.
The present regulation
Present regulation in England and Wales defines consent as settlement by selection, 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 fairly imagine they consented. In figuring out whether or not the accused’s perception was “affordable”, consideration might be paid as to whether the accused took any steps to seek out out if the complainant consented.
However the regulation has been criticised for putting duty on the complainant to disclaim consent. The idea 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 latest analysis report from the College of Warwick has discovered that the remedy of rape instances by the Crown Prosecution Service contains victim-blaming language and a deal with the credibility of complainants forward of the behaviour of suspects.
And the appliance of the regulation on this space is difficult by rape myths. A 2024 examine by the Crown Prosecution Service itself discovered that one of the widespread public perceptions of rape is that it includes bodily violence and is dedicated by a stranger.
In actuality, round 90% of sexual violence is dedicated by somebody identified to the complainant. Solely half of the 18-24-year-olds within the examine 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 alerts 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 clear phrases or actions”. It states that consent ought to be “clear and enthusiastic”, quite than merely the absence of a “no”, and that this consent “might be withdrawn at any time, and can’t be obtained by expressed or implied pressure, threats, or coercion”.
Authorized methods elsewhere on the earth embrace features of affirmative consent. In California, for instance, consent is outlined as “optimistic cooperation in act or angle 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 quite than a mind-set. There have to be lively alerts of settlement earlier than an encounter is taken into account consensual. Because of this if somebody is accused of sexual assault, their means to argue that they believed the complainant consented on the idea 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 aim to show that sure phrases or actions by the complainant meant “sure”.
What’s extra, a spread of pressures could lead somebody to present a token “sure”, and this can be uncritically accepted by a jury.
A unique strategy
One other strategy to affirmative consent is to vary how the regulation frames the actions of the accused.
In Northern Eire in 2019, conversations on reforming consent fashioned a part of the Gillen Evaluate into sexual offences.
The assessment didn’t suggest reforming the legislative definition of consent. However it beneficial altering what constitutes an inexpensive perception in consent so {that a} jury is requested to contemplate whether or not the defendant didn’t take steps to seek out out if the complainant consented.
Because of this as an alternative of putting duty on the complainant to present 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 duty in rape trials.
Specializing in a failure to acquire consent supplies the prosecution with the chance to query the accused on situations in the course of the encounter the place additional enquiries into consent may 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 advice, nonetheless, my interview information means that we want extra conversations about consent in order that communication, in its numerous kinds, is seen as a standard and pure a part of wholesome sexual relations.