Rethinking consent in sexual offences. Five theses in a comparative perspective

Abstract:

As is well known, the rape law has long been the subject of scholarly attention and reform. In recent years, while there has been general agreement on the shift from force to consent, the debate has arisen on which paradigm of criminalisation should be enacted. The discussion has often focused on the opposition between the two mantras of 'yes means yes' and 'no means no'. As a first step, after a description of these paradigms, it will be argued that this dualism does not cover all possible solutions and there are at least three different patterns of criminalisation (1). Afterwards, it will be contented that the practical results of these paradigms regarding rape are not so different from each other: being a single case to mark the difference between them (2). The 'no means no' pattern in its concrete applications (e.g., Germany) is integrated by provisions on particular situations, in which the victim is not required to explicitly dissent. By contrast, the practical results are extremely different in relation to sexual assault, because the affirmative consent model makes any sexual interaction – even a simple kiss – potentially criminal. This is highly problematic in legal systems that do not adopt a ladder approach to sexual offences, such as Italy, where there is a single offence which criminalises every kind of sexual act. More generally, it will be argued that affirmative consent is an overly broad model for criminalising rape and sexual assault (3). Its introduction in the field of criminal law is highly controversial also in terms of consistency with current social attitudes as it is illustrated, among other things, by the recent Spanish reform of sexual offences, which is encountering a considerable degree of political and enforcement resistance. Nevertheless, the paradigm could be useful in defining the actus reus of other offences, such as the non-consensual distribution of sexually explicit images or other forms of IBSA (image-based sexual abuse), which are to be labelled sexual offences (4). Therefore, in the light of the recent Italian experience in penalising IBSA, it will be argued that affirmative consent is a fair standard for criminalising sexual offences based on image abuse.

Bio:

Gian Marco Caletti obtained his PhD in criminal law at the University of Bologna (Italy). From 2019 to 2022 he was a research fellow at the Free University of Bolzano (Italy), working on the interdisciplinary research project "CREEP - Criminalizing Revenge Porn?". He has been visiting scholar at the Universities of Cambridge and New York (NYU). Among the first Italian scholars to deal with image-based sexual abuse, he has repeatedly advised national Institutions. On the same topic he is currently editing a collection of essays from around the world for Oxford University Press. He recently published a book on consent in sex crimes with Bologna University Press.