Consent

last updated December 2014

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women’s Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

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.

Example: Article 273.1 (2)(e) of Canada, Criminal Code (R.S.C., 1985, c. C-46) as amended by 1992, c. 38, s. 1 :

…the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity…

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

Example: Article 273.1 (2) of Canada, Criminal Code (R.S.C., 1985, c. C-46) as amended by 1992, c. 38, s. 1 states that no consent is obtained when:

(a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity…

The law also states that: 

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. §273.1(3)

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.

Example: the Combating of Rape Act, No 8, (2000) of Namibia includes an extensive description of coercive circumstances:

… (2) For the purposes of subsection (1) “coercive circumstances” includes, but is not limited to -

(a) the application of physical force to the complainant or to a person other than the complainant;

(b) threats (whether verbally or through conduct) of the application of physical force to the complainant or to a person other than the complainant;

(c) threats (whether verbally or through conduct) to cause harm (other than bodily harm) to the complainant or to a person other than the complainant under circumstances where it is not reasonable for the complainant to disregard the threats;

(d) circumstances where the complainant is under the age of fourteen years and the perpetrator is more than three years older than the complainant;

(e) circumstances where the complainant is unlawfully detained;

(f) circumstances where the complainant is affected by -

(i) physical disability or helplessness, mental incapacity or other inability (whether permanent or temporary); or
(ii) intoxicating liquor or any drug or other substance which mentally incapacitates the complainant; or
(iii} sleep, to such an extent that the complainant is rendered incapable of understanding the nature of the sexual act or is deprived of the opportunity to communicate unwillingness to submit to or to commit the sexual act;

(g) circumstances where the complainant submits to or commits the sexual act by reason of having been induced (whether verbally or through conduct) by the perpetrator, or by some other person to the knowledge of the perpetrator, to believe that the perpetrator or the person with whom the sexual act is being committed, is some other person;

(h) circumstances where as a result of the fraudulent misrepresentation of some fact by, or any fraudulent conduct on the part of, the perpetrator, or by or on the part of some other person to the knowledge or the perpetrator, the complainant is unaware that a sexual act is being committed with him or her;

(i) circumstances where the presence of more than one person is used to intimidate the complainant.

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.