Sexual assault is distinguished from non-assaultive forms of sexual contact by the absence of consent. "Consent has been defined as the legal dividing line between rape and sexual intercourse." 1997 Report of the Special Rapporteur on Violence Against Women, Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms (E/CN.4/1997/47), 12 February 1997. Generally, nonconsensual sexual contact is obtained through coercion or the use or threat of force. When these elements are present, consent is clearly absent. For a number of reasons, however, it is important to define sexual assault in terms of consent instead of in terms of force or coercion.
First, a definition based on the concept of "consent" encompasses situations in which force or coercion may not have been present, but the victim is physically or mentally unable to consent. The victim may, for example, be unable to give consent to the sexual contact because of disability, age, or the influence of drugs, alcohol or medication; perpetrators may also force sexual contact when the victim is asleep or unconscious.
The principle of consent underlies the definition of statutory rape—some jurisdictions have passed legislation that victims under a particular age cannot give consent as a matter of law. Statutory rape is thus "sexual intercourse with someone under a specified age, which is deemed to be unlawful. The victim is presumed by law to be unable to give consent by reason of his or her tender age." From Radhika Coomaraswamy, Sexual Violence Against Refugees: Guidelines on Prevention and Response 1.1 (1995).
In Bulgaria, for example, "any sexual intercourse with a person under the age of 14 is a crime." From International Helsinki Federation for Human Rights, Women 2000: An Investigation into the Status of Women's Rights in Central and South-Eastern Europe and the Newly Independent States 116 (9 November 2000). Other legal systems in the CEE/CIS do not take a consent-based approach, but rather impose greater penalties for sexual assaults committed against victims under a particular age. In Azerbaijan, for example, the Criminal Code provides that rape is punishable by a period of imprisonment of three to seven years, but that rape of a female child is punishable by a period of eight to fifteen years. Similar statutory schemes exist in Latvia, Romania, and Tajikistan. From International Helsinki Federation for Human Rights, Women 2000: An Investigation into the Status of Women's Rights in Central and South-Eastern Europe and the Newly Independent States 32, 261, 364, 437 (9 November 2000).
Second, a consent-based definition of sexual assault avoids some of the ambiguities that may be associated with the term "force" or "coercion" because it emphasizes the victim's perspective. Behaviors that may not be viewed as coercive by the perpetrator may be highly coercive as experienced by the victim. For example, behaviors can be coercive because of the larger context in which they occur. A woman who has been battered or assaulted by her partner in the past "may choose to submit to unwanted sex acts out of fear, hopelessness, exhaustion, the desire to minimize injury to herself or others, or simply the hope that doing so will end the whole episode." These women may not even themselves identify such experiences as sexual assault, "even when they are certain that the sex was unwanted, against their protests, and /or involved injury or pain." From Patricia Mahoney et al., Violence Against Women by Intimate Relationship Partners, Sourcebook on Violence Against Women 143, 150 (Claire M. Renzetti et al. eds. 2001). Similarly, because of assumptions about what constitutes proper "masculine" and "feminine" behaviors, the coercive nature of the perpetrator's actions may not be clear, even though the sexual contact in question was unwanted. For example, aggressive behavior on the part of the perpetrator may be viewed and excused as "typical" male behavior, even though this behavior—particularly when combined with the perpetrator's larger physical size—was perceived as serious and threatening by the victim.
Other factors—even those unknown to the perpetrator—may cause the victim to experience certain behaviors as involving force or coercion. A prior sexual assault, for example, may cause the victim to interpret sexual overtures as significantly more threatening than they were intended; because of these prior experiences, she may "freeze" or become extraordinarily passive when sexual intimacy is initiated. Sexual contact in such situations is clearly nonconsensual, but may not be understood as such under a definition that would focus primarily on the perpetrator's behaviors and not the experience of the victim.
Finally, a definition of sexual assault based on consent is more consistent with the ways in which other kinds of laws distinguish between assaultative and non-assaultative physical contact with others. As explained in one article, a definition of sexual assault based on consent
recognizes and ratifies a simple principle . . . [namely,] our personal sovereignty. We have the right not to be acted upon unless we wish to be acted upon, and communicate that wish to the actor. Our silence is not our permission. You may not take my wallet simply because I have not said you cannot have it.
From Katie Koestner & Brett A. Sokolow, Eliminating Force From Campus Sexual Misconduct Policies: The Rise of The Consent Construct.
Surgery is another example that has been used to illustrate the importance of consent in thinking about sexual assault and personal autonomy. Essentially, surgery is physical contact. What distinguishes between acceptable and unacceptable physical contact in that situation is not whether the surgery was accomplished with the use of force or coercion, but rather whether the patient consented to the surgery. After explaining the details of the surgery to an athlete, for example, the
surgeon could not interpret the athlete's hesitation as an express of consent. Rather, he would intrude on the athlete's physical autonomy only after the athlete had unequivocally expressed his consent to the operation. This is not to say that consent can only be verbal or in any other particular form. It does, however, show that just like with other kinds of intrusions on physical autonomy, one initiating physical contact should not proceed without the consent of the other individual.
From The Guises of Rape.
At the same time, however, using consent to distinguish between assaultative and non-assaultative forms of sexual contact does not mean that adults must have a written, signed agreement before engaging in physical intimacy. Nor does it even mean that partners must verbally express their consent to sexual contact. "Consent for an intimate physical intrusion into the body should mean in sexual interactions what it means in every other context—affirmative permission clearly signaled by words or conduct." There are many ways to make this permission clear through verbal and nonverbal cues. Permission is not manifested, however, though silence or ambivalence. From The Guises of Rape.
This focus on manifested consent (when consent can be manifested) avoids potential difficulties associated with the scope of the definitions of coercion and consent. Theorists have disagreed about the extent to which interpersonal or societal coercion renders sexual contact assaultative. Feminist theorist, Catherine MacKinnon, for example, has questioned whether consent can ever be freely given by those who have historically been relegated to subordinate positions within society. She argues that the "law of rape presents consent as free exercise of sexual choice under conditions of equality of power without exposing the underlying structure of constraint and disparity." From Catherine MacKinnon, Rape: On Coercion and Consent, reprinted in The Guises of Rape. .
Kersti Yllo, in contrast, has argued that interpersonal coercion (for example, threats to withhold affection) and social coercion (for example, the pressure a woman might feel because of cultural expectations and norms to engage in sexual activity with her partner), do not render the contact in question an assault. She argues that "[o]ppressive as such coercion may be, calling it rape means substantially expanding and, at the same time diluting, the meaning of the word 'rape.'" From Kersti Yllo, Marital Rape, Battered Women's Justice Project.
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