More important than what the unwilling party is doing to draw a boundary, is what the active party is doing to look for the other’s boundaries. By changing the area of focus, one makes the legal situation clearer both for possible victims and possible perpetrators. It will be easier to foresee if the case falls under the standard definition of rape.
It is time to make the decision: What kind of society do we want to be? Do we want to be a society where the question is how one party has tried to say no to sex or a society where the question is what one party has done to make sure that the other says yes to sex? JURK’s opinion is clear: We call for consent-based legislation of rape. These are the reasons why:
Today, the Norwegian Penal Code has a coercion-based definition of rape. It is considered as a crime to obtain sexual activity by means of violence or threats, or with someone who is unconscious or for other reasons unable to resist the sexual activity. Using violence or threatening behavior to make a person engage in sexual activity with another person is also considered as rape. However; other forms of non-consensual sexual activity fall outside of the Penal Code. These forms include a situation where the active party did not use violence or threats or exploit the unwilling part’s vulnerability. However, the unwilling party only orally showed non-consent to the sexual activity.
This is clearly a breach of Norway’s international obligations. According to the Istanbul Convention article 36, Norway is obligated to criminalize “engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any body part or object; engaging in other non-consensual acts of a sexual nature with a person, and causing another person to engage in non-consensual acts of a sexual nature with a third person.”
The Penal Code has a substantial, norm-creating effect on society. And right now it is not working. A survey done by Norstat shows that as many as one of four Norwegians in their 20s has had their boundaries overstepped sexually. The current penal code is clearly not preventing non-consensual sex.
A consent-based legal definition of rape could decrease the numbers of non-consensual sex. By changing the area of focus to “What have the active party done to ensure that the other party is consenting to the sexual activity?”, both parties are encouraged to actively look for the other’s boundaries. More important than what the unwilling party is doing to draw a boundary, is what the active party is doing to look for the other’s boundaries. By changing the area of focus, one makes the legal situation clearer both for possible victims and possible perpetrators. It will be easier to foresee if the case falls under the standard definition of rape.
Sweden incorporated consent-based legislation on 1 July 2018. The change has led to a shift in focus; in police interrogations perpetrators have to explain what they were thinking and how they looked for consent from the victims instead of how they were using force. The alleged perpetrator is given the responsibility to know what the other person wants. Evidence like the victim’s explanations to his or her friends the day after the assault are given more importance, to shed light on what he or she actually wanted at the time. The change of law has lead to an increase in convictions on 75%.
However, a change in the Penal Code is not, in itself, sufficient to create a transformation in the societal mindset. Equally important is the change in public discourse. As the television program “Innafor” by NRK demonstrates, the more one has thought about sexual boundaries and how overstepping boundaries impact others, the less likely one is to overstep other’s boundaries. The consent-based legislation calls for high emotional intelligence in order to interpret the situations correctly. It is therefore of crucial value that sex education is included in schools, and that young people are taught the importance of boundaries and consent.
A consent-based legal definition of rape secures that all forms of non-consensual sex fall under the Penal Code, it is easier for both parts to foresee their legal position than it is in today’s legislation, and the change in the Penal Code can create a change in the societal discourse. However, in order to reach the goal of fewer victims of sexual assault, this has to go hand in hand with a change in the society’s discourse where we talk more about recognizing other’s boundaries as well as making our boundaries clear.
Elisabeth Handeland Helbers is a law student at the University of Oslo. She currently works at Legal Advice for Women (JURK) in the same city. When she is not giving legal advice to vulnerable clients, she is engaged in public advocacy to secure access to justice for all. She also frequently visits Bangladesh.