The Spanish government has plans to introduce an affirmative consent – that is, ‘yes means yes’ – law that would remove the ambiguity present in many assault cases that make it to trial. The law would mean that anything other than explicit affirmative consent means no.
The government’s decision comes after outrage over the “wolf pack”, or la manada, case, in which five men who were jailed for sexually abusing an 18-year-old woman at the running of the bulls festival in Pamplona were acquitted.
Currently under Spanish law, to classify as ‘rape’, the assault must involve violence and intimidation. This definition of rape presupposes that all rape happens at the hands of a stranger, in an alley, and involves a weapon or some other means of intimidation, when that simply isn’t the case: three out of four rapes are committed by someone known to the victim.
Spain wouldn’t be the first country to introduce affirmative consent laws. Sweden passed a similar law earlier this year, and the UK, Belgium, Ireland, Cyprus, Luxembourg, and Germany all have consent-based definitions of rape on the books. California and New York also have their own state-based affirmative consent laws, and several college campuses around the US have introduced their own affirmative consent policies. Canadian law states that “sexual touching is only lawful if the person affirmatively communicated their consent, whether through words or conduct”, as well as “silence or passivity does not equal consent”.
So what does affirmative consent mean, exactly? The affirmative consent model means there has to be an agreement between the parties before sexual interaction can begin, and a person (or both people) must “take reasonable steps to ascertain whether the other party affirmatively consents”.
Approaching consent from a ‘yes means yes’ perspective means acknowledging that not saying ‘no’ doesn’t equal giving consent. There are many reasons someone might not say no – they might worry about what will happen if they do, they might have frozen up in response to the assault – so the approach encourages people to seek freely-given and enthusiastic consent before engaging in sexual acts with another person.
A legal professor at the University of A Coruña who helped draft Spain’s new law said that lawmakers understand consent as not just being verbal but also tacit, as something expressed through body language.
“It can still be rape even if the victim doesn’t resist,” Patricia Faraldo Cabana said. “If she is naked, actively taking part and enjoying herself, there is obviously consent. If she’s crying, inert like an inflatable doll and clearly not enjoying herself, then there isn’t.”
The anonymous account of an evening spent with Aziz Ansari is being pointed to as an example of where tacit expressions of disinterest were ignored, and where an affirmative consent model would benefit both parties. Instead of seeking affirmative consent from the woman’s words or body language, Ansari ignored all signs that she wasn’t interested in a sexual encounter and turned the evening into “the worst night of [her] life”.
As for Australia, The Conversation included the below chart of consent laws around the country in Terry Goldsworthy’s discussion of affirmative consent from earlier this year. The chart shows that the ACT is the only state or territory that doesn’t define consent.
Currently, Tasmania is the only state with affirmative consent laws, but the NSW government announced in May that it had referred the state’s consent laws to the NSW Law Reform Commission for review.
Consent laws as they currently exist haven’t necessarily resulted in the best outcomes for victims of sexual assault. While affirmative consent as a concept is spreading, it’s enshrined in law in a minority of places, and it remains to be seen whether the adoption of it becomes a widespread phenomenon, and whether the adoption of affirmative consent laws improves outcomes for victims who decide to take their cases to trial.