Consent: why do we still not get it?

Trigger warning: references to sexual assault and rape.

At the start of November, five men were convicted of sexual abuse but cleared of the charge of rape after what would have been, in the eyes of a British court, the gang rape of a 14-year-old girl in Spain in 2016. This incident was not an anomaly nor, in the eyes of Spanish law, a miscarriage of justice.

As the victim was unconscious when the attack occurred, the Spanish Court deemed that the lack of ‘intimidation and violence’ in the assault meant that the five individuals had committed sexual abuse rather than sexual assault, which would be the equivalent of rape in Spanish law. The five men were sentenced to 10 to 12 years in prison rather than the 15 to 20 years they would have received for sexual assault.

Following the trial, there were widespread protests in the country, comparable to the demonstrations that took place following a case in 2016; in which the rapists became known as the “the wolf pack”. “The wolf pack” were also convicted of abuse rather than rape. However, the Supreme Court overturned the original verdict, giving each of the offenders 15 years in prison.

This decision was not made on the lack of consent from the victim, however, but through a re-evaluation of the events of the case. The judges decided, due to the number of assailants and the fact that the incident was ‘prolonged’, that the nature of attack amounted to intimidation from the assailants and, thus, sexual assault.

While the “wolf pack” case has pushed the Spanish Prime Minister, Pedro Sanchez, to reform sexual assault laws, that has yet to come to fruition. In the meantime, women, or men, who have been raped while unconscious will not see their rapists be deemed as such by the law.

Spain is not the only country in Europe to place such emphasis on violence and intimidation, rather than an absence of consent, however. There are just nine countries, out of 31, that define rape as sex without consent; the others require some type of force, intimidation or an inability for the victim to fight back to be a factor in the assault. 

Recent changes in the law in countries such as Sweden, and a commitment from Finland and Denmark to change their laws, show that we are moving in the right direction. But law changes alone will not rectify the often troubling attitudes towards rape displayed across Europe.

A study conducted by the EU commission in 2016, in relation to attitudes on rape, showed that 27% of nearly 30,000 respondents said that sex without consent was justifiable in some circumstances. Percentages were as high as 55% when looking at individual counties. Reasons ranged from the victim wearing provocative clothing (10%) to the victim being intoxicated by drugs or alcohol (12%).

It is not just the countries that do not legally define rape as ‘sex without consent’ which lack regard for the importance of consent. Even in the UK, where rape is recognised by a lack of consent, British people’s opinions do not match up to the law. Many still see force, violence or intimidation as vital components to act of rape.

In a YouGov survey, conducted in December 2018, a third of respondents, from a total of 4000, said that it isn’t usually rape if a woman is pressured into having sex but there is no physical violence involved. Around one in ten asked were unsure, or do not think it is usually rape, to have sex with a woman who is too drunk to consent or who is asleep. 

Further, a third of men asked in the poll said that flirting on a date meant that a woman could not then change her mind about having sex later on, with the same number believing that a woman cannot change her mind once sex has begun.

Clearly, the myth that rape is committed violently by a stranger in a dark alley remains pervasive. 

When women, or men, have their bodies violated through sex without their consent this is, undoubtedly, an act of violence. But this act of sexual violation is not always committed with or through physical intimidation or violence. 

If a person is unable to consent because they are unconscious or intoxicated: it is rape. If they change their mind halfway through sex but the other person keeps going: it is rape. If you do not want to have sex with your significant other but you are pressured to anyway: it is rape. If you have flirted and danced with someone in a nightclub, returned to their place and are forced into sexual intercourse: it is rape. 

For students at university, victims will not only have to contend with troubling attitudes towards consent  – particularly in relation to intoxication, provocative clothing and ‘flirting’ – but investigations from the BBC have found that many students have had to follow a traumatic – and often drawn-out – complaints procedure at their university. What’s more, these often led to very minor punishments for some assailants; such as writing a letter of apology to the victim. 

Other investigations have revealed that reports of rape, sexual assault and sexual harassment from university students have risen dramatically – with 65 in 2014 and 626 in 2018. This may however be indicative of a rise in the number of people filing reports, rather than simply a rise in the number of cases.

In relation to how universities must record or investigate complaints of sexual assault, abuse or harassment, there are no mandatory rules for universities to follow. This means that students who are perhaps too afraid to go to the police may be let down by their university.

In a study conducted by the NUS, 61% said that the perpetrator of their sexual assault was committed by another person in higher education. Additionally, due to the high likelihood of a rape and sexual assault victim knowing their rapist – some reports put the figure at around 90% for victims of sexual assault – this may mean they could potentially see their rapist on a daily basis around campus.

Clearly, there is still lots of confusion or ignorance towards what is meant by ‘consent’. With women under thirty-four being those most likely to be sexually assaulted or raped and a student culture that often sees people unable to give consent due to intoxication, we need to be crystal clear about what consent means and we need to make sure we recognise that consent is ongoing in any sexual encounter. 

This means we need stricter guidelines for universities when approaching a complaints procedure, despite the fact that Universities UK believe there is progress being made in regards to this. It also means that, whether or not students think they ‘need’ guidance, we must continue staging and developing consent workshops at institutions throughout the country.

As a nation we may appear to be ahead of many countries in Europe when it comes to acknowledging rape as sex without consent, but we still have plenty of progress to make. We need to make sure our attitudes reflect our laws when a victim comes forward and we must continue to reject the pervasive myths about rape.