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‘No means no’: hearing on the question of consent in gender-based violence

Hearing on the issue of consent in gender-based violence

"It was while accompanying victims in court that I realised that the French Criminal Code did not protect victims," Catherine Le Magueresse, Associate Researcher at the Sorbonne’s Institut des Sciences Juridique et Philosophique, said today at the opening of a hearing on "Gender-based violence - the question of consent", organised by the PACE Equality Committee and the Assembly’s Parliamentary Network Women Free from Violence.

She stressed that under French criminal law, a woman is presumed to consent unless the aggressor has used violence, surprise, coercion or threats. The fact that a woman has refused is therefore not enough. Until the law of 21 April 2021, this legal regime even applied to minors, who also had to prove violence, coercion, surprise or threats. "Rather than looking at the actions of the aggressor, we are interested in the reaction of the victim," she pointed out.

French law is based on "the stereotype that a woman is presumed to consent". In Ms Le Magueresse's view, there is therefore an urgent need to revise the law to include a definition of positive consent, along the lines of the definition found in the Istanbul Convention, which would imply that regardless of any pre-existing power relationship, the "freely expressed and externalised consent of the other" must be ensured.

Sabrina Wittmann, a lawyer with the Council of Europe's Violence against Women Department, recalled the definition of rape and sexual violence in Article 36 of the Istanbul Convention, namely that "consent must be given voluntarily and be the result of the free will of the person evaluated in the context of the surrounding circumstances", and then went on to discuss the different categories of Member States that legislate around the concepts of "no means no" or "only yes means yes".

Ms Wittmann recalled the Organisation's guidelines in this area, based on the Istanbul Convention: to penalise all sexual acts committed without the victim's consent, to launch awareness-raising campaigns on the importance of consent, to train law enforcement agencies and the judicial system on the subject, and to strengthen the support system for rape victims.

"Sexual consent is a moral issue before it is a legal one", said Manon Garcia, Professor of Practical Philosophy at Berlin's Freie Universität. "Consent requires a mental attitude that must be expressed by the person giving consent. But communication is not just about expression, it also involves reception," she said.

She cited conversation analysis studies which show that slogans against sexual violence that invite young women to "say no" are problematic because they do not take into account the way in which refusals are communicated in normal life. Silences or weak acceptances ("hmmm... why not?") are often used because saying "no" risks being perceived as a hurtful response. Clearly refusing sex means putting one's will and physical integrity first and not behaving in a kind and accommodating manner, "which goes exactly against the way women are brought up to behave", pointed out Ms Garcia.

Yvonne Woods, Head of Campaigns at the Dublin Rape Crisis Centre, presented the "We Consent" Campaign, which is part of a national programme to promote and enable a better understanding and practice of consent in Ireland. She highlighted the key messages: "Consent is for everyone, is for all ages, and also applies to long-term relationships. It is about an agreement between people rather than permission given by one person to another. A better understanding of consent builds a better society and we all have a role to play in creating this more egalitarian future."

She concluded by presenting the promotional video for the campaign, underlining its spirit: "We wanted it to be engaging and positive, but above all with a note of maturity so that it doesn't just look like a youth campaign." Because the problem concerns us all, at the deepest level, she said: "If you treat sexual violence like a weed, and only tackle it on the surface, it's likely to grow back at some point. So we need to get to the root of the problem."