Sexual consent in law

Many also stipulate conditions under which adults are deemed incapable of consenting, such as being asleep or unconscious, intoxicated by alcohol or another drug, mentally or physically disabled, or deceived as to the nature of the act or the identity of the alleged perpetrator (rape by deception).

The 2000s and 2010s have seen a shift in favour of consent-based legislation, which was increasingly considered as providing better guarantees for the legal protection of (potential) victims of sexual violence.

[3][page needed] Strictly speaking, Rubenfeld (invoking Commonwealth of Pennsylvania v. Berkowitz 1994) claimed that any non-consensual situation can be resolved by standing up and leaving the premises, as he deemed rape paralysis to be nonexistent.

[10]: 7  The Model Rape Law stated that "[l]ack of consent is presumed where rape was committed by force, or by threat of force or coercion",[10]: 7  or whenever a person was "incapable of giving genuine consent" for a wide range of reasons, including but not limited to being younger than age 16, "unconscious, asleep, or seriously intoxicated as a result of drugs or alcohol consumed voluntarily, involuntarily or unknowingly", or abused by the perpetrator's "relationship or position of power or authority over the victim".

[10]: 7–8 The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) was adopted by the African Union (AU) in 2003 (in effect since 2005), which stipulates that "States Parties shall take appropriate and effective measures to enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public."

[14]: 8, 51–53, 60  De Vido (2018), who likened it to the Istanbul Convention,[15] stated: "The framework extremely promising, although the action plan is a non-binding act and the implementation relies on an intergovernmental body.

v. Bulgaria case, namely: "In accordance with contemporary standards and trends in that area, the Member States' positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.

[7] The United Kingdom's four constituent countries England and Wales (one jurisdiction), Northern Ireland and Scotland separately introduced consent-based legislation in the 2000s[9] despite the UK not having ratified the convention as of 2018.

Excluding Canada, Cuba and the United States, 32 of them have signed and ratified the Belém do Pará Convention, which the Inter-American Court of Human Rights in 2006 ruled to be consent-based,[24] with its follow-up mechanism MESECVI in 2014 declaring the same.

[14]: vi  The 2016 ASEAN RPA on EVAW recognised several forms of sexual violence based on a lack of consent,[14]: 66–67 [b] and called on all 10 member states to criminalise marital rape; 4 of them had already done so as of February 2016.

So there are voices calling for a polite and careful investigation to visualise the crackdown to prevent false accusations, the right to join lawyers, and shorten the arrest period.

[126] Article 297 (Rape) of South Korea's Penal Code states: "A person who, through violence or intimidation, has sexual intercourse with a female".

[129] Actually, several attempts have been made to revise the criteria for rape from the presence or absence of "assault or intimidation" to "consent", because of the criticism about the current Penal Code of South Korea, but they have failed.

In fact, criticism has been raised that the principle of presumption of innocence is not properly observed in South Korea, and the damage caused by the false accusation of sexual violence actually exists.

The following states have yet to do so: These European countries currently have coercion-based legislation, but have ratified the Istanbul Convention, which obligates them to introduce a consent-based definition of sexual violence.

[170] In 2024, the United States federal Department of Health and Human Services banned hospitals from performing non-consensual breast, pelvic, prostate, and rectal exams for "educational and training purposes" by medical students, nurse practitioners, or physician assistants.

—The term "incapable of consenting" means the person is— The Catholic Church, governed by the Holy See in Vatican City, updated Book VI of its 1983 Code of Canon Law in June 2021 (taking effect on 8 December 2021) for clearer rules on numerous offences, including sexual ones.

Pope Francis, archbishop Filippo Iannone, and other officials stated that bishops had been too lenient in penalising offenders in the past, in part because of the vagueness of canon law, and formally introduced laicization as a penalty for certain sexual offences.

The Catholic Church's interpretation of the sixth commandment is much broader than just adultery (extramarital sex), and concerns a set of so-called "offences against chastity".

Bra was positively surprised by this greater-than-expected impact, saying "this has led to greater justice for victims of rape," and hoping it would improve social attitudes towards sex.

Amnesty International regarded the results as evidence that other countries should also adopt consent-based legislation in order to protect (potential) victims of sexual violence better.

[217] Contrary to what some opponents of consent-based legislation have argued, "recent research in countries such as Britain where sex without consent is considered rape, shows that false accusations have not gone up dramatically."

Oxford legal professor Jonathan Herring stated in January 2021 that the main remaining problems in the UK are proving "beyond all reasonable doubt" the victim did not consent, and that many juries "still believe in 'rape myths', eg.

[218][219] In some rare cases, however, pre-modern laws did consider the (lack of) consent of a person (particularly a woman) involved a relevant factor in determining whether or not a sexual offence had occurred.

[232][233] This prejudice within the criminal justice system against the "word of a woman" creates a great barrier to the effective enforcement of rape legislation, but particularly consent-based, as the latter often results in "he-said, she-said" type scenarios.

[235] Contrary to the stereotype of rape survivors mainly wishing for retributive justice, several surveys have found a desire to protect others as the primary reason for reporting their offenders.

[235] Furthermore, many rape survivors face great personal obstacles within a trial setting: often being berated in aggressive cross-examinations, humiliated with inappropriate and irrelevant questions and intimidated by the assailant's friends and families in the courtroom.