Consent is a must.
Sex without consent is rape. And rape is a crime. It really is that simple.
* annually, around 600 cases of rape are reported.
* in reality, there are around 12 000 cases of rape per year.
* that’s 34 victims each day, but only one or two report it to the police per day.
* but in fact, rape is one of the most serious crimes.
* 90 % of rape victims have long-term consequences.
* 5-8 % of Czech people have raped someone.
* 90 % of rape victims are women
* One in ten Czech woman experiences rape during her life.
* 50 % of sexual assaults are committed by a spouse or husband. 40 % by someone who is close to the victim – a neighbour, a colleague or even a friend.
Why don’t the victims just speak up?
90 % of women are raped by someone they know: a friend, colleague, boss or a family friend. In half of the cases, it’s even a husband or partner. Most of the time, it doesn’t look like a bloody crime story – the victim often doesn’t fight back because of the fear of consequences.
Rather than physical violence, the rapist creates psychological pressure and since the woman is then paralysed, it is not that easy to just punch the rapist in the face. Especially when it’s a colleague or a partner, who forces you or manipulates them to do something and eventually threatens them with the consequences that might happen if they keep resisting.
The current law is not enough!
§ 185 of the Criminal code states: (1) Who forces one another to sexual intercourse with violence, a threat of violence or a threat of another harm, or who takes advantage of one another’s defencelessness, will be sentenced to prison for 6 months to 5 years.
We stand for a change!
On the occasion of Valentine’s Day, we decided to organise a happening, which was supposed to highlight the topic of rape and its unpleasant legislative definition.
Sure, sex on Valentine’s Day is great, but rape is not!
So what’s our problem with the current law?
The current law states that sexual assault must include psychological or physical pressure to be legally considered rape. We say that sex without consent is always rape. Do you agree?
In Belgium, Croatia, Cyprus, Denmark, Germany, Greece, Iceland, Ireland, Luxembourg, Denmark, Sweden and the United Kingdom, the consent-based law has already been enacted. We want the Czech Republic to be one of those countries as well.
Law should be there to protect people. It must set the direction which the society should follow. If the law about consent is enacted, it sends a clear message to rapists, victims, and society in general that sexual violence must be taken seriously and under no circumstances should it be tolerated. This will eventually make people perceive consent as a natural thing. Yes, the laws may seem to be strict, but let’s not forget about the court, where the humane perception is added to those written rules. The change in the law does not necessarily mean full prisons all over the country.
12 of 31 European countries already have it that way, so why can’t we?
Carnations against sexual violence!
To support the change, we organised a happening. On the 12th of February, we placed a bed in the public space. Sure, the combination of Valentine’s Day and a bed sounds romantic, but our intention was to draw attention to related issue, which is not covered enough by our law – sex without consent, i.e. rape. We placed one of our homemade carnations for each officially reported victim on the bed and took them all to those who can actually make a change – politicians.
What is the legislative change all about?
The change of the law is connected to many concerns and myths. Amnesty International, which is currently involved in activities connected to the legislative change, has answered some crucial questions about it. Check out the FAQ and say goodbye to your doubts!
So are we now gonna fill a form every time we decide to have sex?
No. Consent is not that hard to express. To have sex, you have to be sure that the person you are going to do it with wants to do it as well. The signals can be both verbal and nonverbal. If you have ANY doubts, don’t be afraid to ask. Consent can be also perceived as a responsibility to make sure that both partners do any kind of sexual activity voluntarily.
Basically, it’s something that should be obvious – only the sex which you agreed to is ok. Fortunately, the vast majority of people see it that way. Unfortunately, there are exceptions. For example, a study which took place in the EU found out that more than one in four respondents believe that sexual intercourse without consent can be justified in some cases. Some examples of those cases are: being too drunk or high to say no, is dressed inappropriately, isn’t saying no clearly or doesn’t fight back. This attitude has no place in the 21st century. Modern criminal law must define clear barriers.
Does the defendant have to prove his innocence?
No, the defendant doesn’t have to prove anything. Proving the perpetrator’s guilt is the task of a prosecutor. Besides that, the defendant is considered innocent until proven guilty by the court. The principle „in dubio pro reo“ („in doubt for the accused“) stays valid. When there are doubts about the course of events, the defendant is acquitted. Nobody demands a change of the presumption of innocence. The redefinition only aims to point at the cases in which there is enough evidence proving the defendant’s acts were contrary to the victim’s will. At this moment, this doesn’t always work.
The point of consent is really easy: If you wanna have sex, you have to be sure that the person you’re about to have it with feels the same.
What about false accusations?
False accusations are often used as an argument when discussing the revision of sex crime law, but there is a lack of empirical evidence to prove this point. It’s more of a persistent myth which is based on gender stereotypes, such as a vengeful woman. The victims of sexual violence often come across this suspicion, but in reality, it takes a lot of courage and strength to go and report the crime. The criminal procedure is usually a huge burden for the victim – it’s not unusual that not only the accused, but even the police or the court doubt the victim’s credibility and reputation. The rape victims often get the impression that it was their fault or that they at least contributed to it by wearing provocative clothes or by walking alone.
False accusations are connected to all types of crimes and are punished. As we’ve stated earlier, the change of the definition doesn’t mean that it would be easier to prove guilt or that the accused would have to prove his innocence himself.
A significant issue is that most of rape cases are never reported. According to academic research, there are around 12 000 sexual assaults committed every year (for comparison, the number of car thefts is around 3000 per year). However, only around 600 of them are reported (Šafařík, 2020). That means 34 cases per day, and only one or two of them are reported.
Jak nové zákony zajistí, aby se znásilnění prokázalo?
Zavedení souhlasu do zákona nezmění dosud zavedené rozložení důkazního břemene u soudu. Je stále na orgánech činných v trestním řízení, aby prokázaly, že je obviněný vinen. Co se změní, je rozsah dokazování, takže se nyní nebude soustředit jen na to, co oběť učinila, aby dala obviněnému najevo, že nemá zájem, ale také na to, jaké kroky obviněný učinil, aby zjistil, zda oběť souhlasila. Věříme také, že nový zákon, který nevyžaduje, aby oběť kladla odpor proti znásilnění, způsobí, že více obětí znásilnění ohlásí tento trestný čin na policii. V současné době nahlašuje znásilnění pouze nepatrný zlomek obětí – z přibližně 12 000 případů ročně je nahlášeno pouze 600 (Šafařík, 2020).
Consent doesn’t really change anything in practice – it’s still word for word in court, right?
In the case of rape, much evidence can be found, either in favour of the defendant or the victim. Even today, the victim’s statements are the main and sometimes even the only evidence of sexual assaults. The credibility assessment is a daily job of police and courts. There are methods set out to deal with such tasks, including the use of propositional psychology. In particularly challenging cases, it is also possible to invite specialists. When it still isn’t possible to clarify what happened, the principle in dubio pro reo applies. That means that unclear evidence can’t be used against the accused. That’s basically the same as nowadays because even the use of force doesn’t always leave clear evidence.
Embedding consent into our legislation wouldn’t necessarily mean a huge increase of convictions, but we believe that it would lead to an increase of reports of rape cases and would eventually prevent sexual violence in the long run. The emphasis will no longer only be on what the victim has done to show their disapproval, but it would also emphasize what made the offender think that he had the victim’s approval.
Consent-based rape legislation will also help to change attitudes both in society and in the judiciary. This will help to prevent rape in the long run.
Znamenala by tato změna konec právního státu?
Ne. Prokázání viny pachatele zůstává úkolem státního zástupce. Kromě toho obviněný je nevinný, dokud soud neprokáže jeho vinu. Zásada „in dubio pro reo“ („v pochybnostech ve prospěch obviněného“) není dotčena. Pokud existují pochybnosti o průběhu událostí, je obviněný osvobozen. Nikdo nepožaduje odklon od zásady presumpce neviny. Redefinice usiluje pouze o zajištění toho, aby byly trestně odpovědné osoby, u nichž se dostatečně prokáže, že jednaly v rozporu s vůlí oběti.
V dvanácti zemích Rady Evropy (např. Velká Británie, Belgie, Německo, Dánsko a Švédsko) je sexuální styk bez souhlasu nebo proti vůli již definován jako znásilnění. Odpovídající reformy probíhají v jiných zemích (včetně Španělska a Řecka). Jejich cílem je dosáhnout větší spravedlnosti pro oběti sexuálního násilí a snížit beztrestnost sexuálního násilí.
Can Amnesty prove that the consent-based law has lead to an increased amount of convictions, for example in Sweden or the UK?
No. It is difficult to document the direct effect of the enactment of the consent-based law In the UK, we can see that there has been an increase from 12 000 to 42 000 reports after introducing more concrete and thorough consent-based legislation.
The first countries to enact the definition of rape based on the absence of consent in 2018 prove that the amount of reports, prosecutions and convictions connected to rape has increased. The consent-based law is not a comprehensive solution when it comes to preventing rape, but it definitely is a good start.
In addition to the amendment to the law, police and prosecutors should undergo thorough training in the field of rape and gender stereotypes. In sex education, schools should emphasise the importance of consent. The law based on consent sends a clear signal about boundaries and the fact that crossing them is an unacceptable interference with human integrity.
Is consent a new and unverified concept?
No. The introduction of consent into laws is neither new, nor ground-breaking. Twelve European countries already have this definition in their legislation. For instance, the UK has had such a law since 2003. According to the international human rights law, rape should be defined clearly as an absence of consent, so the right to bodily integrity is secured.
Isn’t that enough that our law already covers abuse of defencelessness?
The topic of defencelessness isn’t that easy. It is rarely considered when deciding about sexual violence and most of the time, the crime is qualified in accordance with another section of the Criminal Code with a lower penalty rate. Cases of complete defencelessness (unconsciousness, severe alcohol intoxication, hypnotic sleep, induced coma, effect of drugs, disease and more) do not present such a problem in the evaluation.
The problem occurs in the cases where the defencelessness was questionable, i.e. the victim had limited opportunity to express their will. This relative defencelessness is interpreted quite restrictively. A commentary on the Criminal Code connects this term with situations when the victim doesn’t understand what the offender wants from her, i.e. doesn’t understand the offender’s behaviour and is not able to anticipate the consequences. In reality, it is insufficient because most people are able to anticipate the consequences, and are aware of what is happening but aren’t able to react adequately because they are paralysed by fear, or other circumstances are preventing them from responding.
For example, in the well-known case of the gynaecologist who inserted his penis in his patient during examination, this act was just considered as violating her rights. The court has stated that, to be considered a case of defencelessness, the victim must be completely unable to resist. Another example is the case of an instructor who tried to penetrate sleeping girls with his fingers, who fortunately woke up and stopped him. In this case, the Supreme Court decided that if the victim woke up while the offender was just in the phase of trying to touch them, it was not attempted rape.
Such an interpretation would lead to the conclusion that it is impossible to attempt rape on a victim who is asleep. Therefore, the offender wouldn’t be punished with the same penalty as rape. Why? Because either the victim wakes up and it is considered a violation of rights, which is punished more leniently, or the victim stays asleep and therefore the rapist can continue. Therefore, it is no longer just an attempt but a rape.
Another problem is to distinguish between defencelessness and the victim’s dependence on the perpetrator. In 2013, the Supreme Court stated that victim’s dependence is, unlike defencelessness, a condition when the victim is unable to decide freely, because of their dependence on the perpetrator but isn’t defenceless. These cases are then defined as sexual coercion, again with a lower penalty.
Another sign of defencelessness can be the victim’s age. Unfortunately, even this is not taken into account and the crime is usually considered as a sexual abuse, therefore with a milderpenalty. Currently, the Court doesn’t investigate whether, for example, a thirteen-year-old girl, who was manipulated by the abuser for a long time, could really consent to sexual intercourse at all. On the contrary, according to a commentary on the Criminal Code, being underage is not considered defencelessness if the victim is physically and mentally mature enough to understand what is happening and was able to express her disapproval clearly.
If it was for the consent-based law, intercourse with a thirteen-year-old would be charged appropriately. That case would be currently considered sexual abuse, which is charged with a lighter sentence.
Isn’t that enough that we already have the phrase about causing another form of harm?
It may appear that this formulation could cover many cases of non-consensual sex, but even here, there are gaps in practice. The section 186 in the Criminal Code defines sexual coercion with a lower penalty than rape – the lowest penalty is just 6 months. Many cases are then classified within it. This would include, for example, the case of a teacher taking advantage of a student by making her have oral sex with him, threatening her that she won’t graduate if she refuses.
The linebetween rape and sexual coercion isn’t quite clear. The behaviour, that could be punished more severely according to the rape crime rate is more often considered as sexual coercionand consequently punished more leniently. If we defined rape as an absence of consent, it would enable us to punish adequately the cases that are now considered sexual coercion.
What has rape to do with gender equality?
Rape occurs as a result of structural inequalities between the sexes in our society.
90 % of victims are women (stopznasilneni.cz, 2009), and in most cases, the perpetrator is a man. According to international agreements, the countries are obligated to do everything in their power to guarantee women and girls that they can go anywhere without fear of abuse.
What’s the main goal of the campaign Consent is a must?
The main, long-term goal of the campaign is to lower the amount of cases of rape and to debunk the myths connected to sexual violence. One of the main steps is to redefine the legal definition of rape so that it is based on consent. The enactment of this definition would make it pretty clear to all the victims, rapists, prosecuting authorities and everybody else that when there is no consent, it’s always rape.