TW: Rape, sexual assault, consent.
With countries such as Spain and New South Wales passing the new ‘Yes means Yes’ law, is it time for the rest of the world to do the same?
This new law ensures that silence or passivity no longer means consent. Individuals must consent to sexual activities through a simple ‘yes’. There are no grey areas to consent: sex without consent is rape. Despite this, in courts, there are growing numbers of cases which lead to ‘not guilty’ charges, due to the language used (or not used) by the victim. Perpetrators have used arguments of ‘she didn’t say no’ or ‘she didn’t push me away’ for decades, and have avoided incarceration as a result. It doesn’t seem to matter that there is an obvious distinction between enjoyment and reluctance – more often than not, this is not enough for a rapist’s name to be tarnished over a misunderstanding. Arguments concerning passive consent may be weak to most of the jury, however that extra nodule of doubt can reduce their verdict to less than beyond reasonable doubt.
So, will this rule reverse this process? In the majority of cases of rape, coercion is still a primary factor. The 'no. means no' law does not recognise that rape is not black and white. An individual may be raped 10 years into their relationship, pressured by their partner because they haven’t ‘done anything’ in a while. Just because they respond, does not mean they are actively wanting to engage. Therefore, this rule acknowledges that begrudging participation is not consent. It also recognises that no matter how long you have known the other individual, you still have the option to say ‘no’. The rule seems set in orthodox views of rape being between an individual and a stranger. We know now that this only makes up a minority of cases.
Whilst rape and sexual assault occurs with various perpetrators and victims, it is often considered a gendered crime. Where these laws are implemented, they can change the narrative: women are no longer objects, but equal sexual actors. Furthermore, there are arguments that this could change the reporting system. Where there are no longer arguments of passive consent, this may increase the strength of the victims’ stories, casting less doubt upon them. The burden of proof would change to the perpetrator: they must prove they received active consent. This could increase reporting rates, since the victim will no longer be scrutinised in court surrounding the burden of proof. This slight relief of pressure may be enough to encourage more to come forward.
Despite this, some say that as soon as the narrative changes to affirmations of consent, women will remain undermined. If she said ‘yes’ once, arguments may remain that she is likely to say ‘yes’ again. ‘Slut-shaming’ is a common phrase in our society. For someone embarrassed or not meant to be engaging in sexual activities, these rules are unlikely to change their reluctance to report, in fear of the backlash. Furthermore, there are concerns that these laws would increase the numbers of false accusations. Now that the burden of proof is on the perpetrator, what happens to innocence until guilt is proven? Considering the oppressive nature of the crime, it is unlikely that this rule would have such an impact on the outcomes.
Furthermore, others believe that non-verbal consent is enough for individuals to read the signals. Despite this, these seemingly ‘grey areas’ are only used as defences to accusations of rape. Sex is a private activity: the stakes are high and a quick check-in should not be undermined in favour of those who believe their private activities are being curtailed to ensure others’ safety.
Would you prefer the risk of 'no' means 'no'? Or would you prefer active consent, knowing your sexual partner is comfortable in the activity suggested?
---- Mary Collingridge, Women's Officer
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