‘Only Yes Means Yes’ – Reforming Sexual Assault Laws

Picture of By Mila Macrander

By Mila Macrander

The way rape is defined in a country’s legislation has a significant impact on how victims of sexual assault experience the aftermath of the crime. A trend of reforming rape laws, as observed in several European countries in the past few years, can be a big step towards providing more support and protection for sufferers of sexual abuse. The decisive key term that can ensure this is consent: actively agreeing to be sexual with someone.

Sexual assault, sexual harassment, sexual violence or rape. 

Thankfully and sadly, these are all terms that have come to be more prominent in society, in recent years, predominantly under the hashtag #MeToo. The Me-Too campaign, launched by activist Tarana Burke more than 15 years ago, reached its peak of media attention in 2017, following accusations of sexual abuse made against Hollywood producer Harvey Weinstein. 

Hereupon, many survivors that prior to the movement remained silent, (thankfully) felt encouraged to raise their voice about their own taunting experiences with sexual assault and harassment, (sadly) showing how frequent these crimes occur and stay unpunished. By raising awareness and providing a platform to speak out, the movement can be seen as the initiator of several positive changes in how America treats sex-related crimes.

Not only in Hollywood but also in Europe and the rest of the world rape, sexual assault and harassment are more common incidents than what is known, as victims often feel discouraged to speak out about it. A feeling of lack of support and belief for the victims and incidents of missing or inadequate consequences for abusers prove that this topic requires governmental attention and concrete action.

A country that has quite recently taken a big step into tackling this problem, is Spain.

On August 25, 2022 the Spanish sexual consent law was toughened by now defining rape as sex without clear consent. This new bill known as “Only yes means yes” makes it easier for victims to get justice and for abusers to be held accountable. More precisely, the law defines that “Consent is recognized only when a person has freely demonstrated it through actions which, in the context of the circumstances of the case, clearly express the person’s will.”. 

Prior to the reform, sex without consent was not charged as rape unless the victim could prove that the abuser had used physical violence or intimidation. Under the new law, the distinction between sexual abuse and rape or sexual aggression is dissolved entirely, preventing that victims are put into a position of proving that they were subject to violence or coercion.

The Road Leading Up to the Reform

As with quite some other issues in society, there needs to be a wakeup call in some form of tragic incident before needed actions are taken.

The reform in Spain’s rape law did not come out of nowhere but was brought about by a rape case in 2016 that shocked the entire country. In what is known as La Manada, the “wolf pack” gang rape, a group of five men raped an 18-year-old woman at a bull-running festival in Pamplona. The crime was videotaped by the men themselves and when the video, shown in court, depicted the woman being silent and not fighting off the abusers, the judge deemed this behaviour as a sign of consent. Consequently, the rapists were only charged with sexual abuse which, defined by the absence of violence or intimidation, carries lighter penalties than the crime of rape. 

What followed was a nationwide outcry with demands of a change in the sexual assault law that, eventually, were heard. The men’s charge was finally changed to rape and increased from nine to 15 years.

Still Not the Norm

Although the changes in Spain’s rape law seem only timely and appropriate, “Only yes means yes” is still not the predominant way of defining rape in Europe. 

According to Amnesty International, an NGO and global movement fighting human rights abuses, only 12 out of 31 analysed European countries in 2020 already apply this consent principle, among which are Belgium, the UK, Denmark and Sweden. The remaining countries, just like Spain prior to the reform, only charge predators with rape if any form of force, threat or coercion was in play.

“Only Yes Means Yes” > “No Means No” 

 Another type of policy concerning sex crimes is labelled “No means No”, which is currently still in effect in Germany and Austria. Such a legislation talks of rape if the affected person said “No”, but not if the victim did not say anything.

The problem with this is evident. If not saying “No” is already sufficient for the victim to be considered consensual, this usually leads to rapists being let off with no or inadequate charges. Above all, this grossly misjudges the situation victims find themselves in, as it is easy to imagine being too scared to express resistance, being too shocked to still fight. Equally, the victim is put into a position of justifying why he or she did not say “no” and is ascribed a certain degree of responsibility for the crime based on his or her behaviour. It speaks for itself how this potential of victim-blaming discourages the assaulted person from speaking out in the first place.

Under a law based on consent, rape not being deemed as such by the court, because silence or passivity on behalf of the victim is interpreted as consent, will no longer be a reason that perpetrators face comparatively light legal consequences.

“It’s a Dress, Not a Yes”

“Only Yes means Yes” also makes clear that a woman’s clothes, her behaviour towards men or her drunkenness do not and should never count as consent.

This is preventing women specifically, but in general everyone, from having to fight for a rape case to be rightly considered as such. 

Although rape is not an issue exclusive to women, 90% of adult rape victims are female, thus, consent laws can be considered an important milestone for the feminist movement as well. 

By changing to a consent law, a country can send a clear message about how they are treating, valuing and protecting their citizens, especially women, and taking this step is therefore vital to making a clear statement against tolerating rape.

Whereas Spain and the other eleven European countries already progressed on the rocky road to tackling rape culture, efforts are still needed in order to get protective measures like “Only Yes means Yes” to be the norm across the world.

Cover: Ehimetalor Akhere Unuabona/Unsplash

Edited by Patricia Beschea

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