The things we still don’t understand about sexual assault: Why we need EU-wide Only Yes Means Yes laws

By Abby Amoakuh

Published Feb 25, 2024 at 09:00 AM

Reading time: 6 minutes

Trigger warning: Mentions of rape and sexual assault

When I was 18 years old, I went to my university’s Halloween party dressed as an angel. As I approached the bar, which was covered with pumpkin stickers, cobwebs, and cheap cider, I was pulled away by a strong set of arms. Next thing I knew, I was pressed against the erection of a guy I didn’t know, who whispered: “Hey pretty baby, will you be my angel?” into my left ear. My whole body tensed up and I found myself unable to speak or move. My eyes locked with the ones of a coursemate standing opposite me but he didn’t say or do anything either. Despite being in a crowded room, I felt incredibly helpless. The whole interaction probably lasted for less than ten seconds, so I told myself it wasn’t a big deal. After managing to gnaw myself free from the perpetrator, I tried to shake it off, but I still I couldn’t muster a real smile for the rest of the night.

It was pretty clear to me back then that I had been assaulted. Thousands of women experience similar things every single day. There is really no point anymore in rehashing the statics of how many girls get harassed before they reach the age of 18, or how many of them have experienced an act of physical assault just within the last year. We’ve all seen the numbers. We know that things are bad. My experience wasn’t unusual or exceptional by any means.

“So I put it into a lot of writing. He’s written about them in his albums as well, he wrote a couple of songs about the miscarriage. So it just felt like something that I could address publicly because it’s been addressed in one way through him, so I have a space to express as well,” Fox revealed in reference to her upcoming poetry book during an interview with WDD.

To address this epidemic of sexual violence, European governments have spent the last few years attempting to remove some of the legal hurdles survivors face when they press judicial charges. However, as is always the case when it comes to gender-based violence, a number of delays and problems have arisen.

Currently, only 16 out of the 31 European countries analysed by Amnesty International define rape as sex without consent. So, when the European Commission presented a draft law aimed at classifying all non-consensual sex as rape in March 2022, activists, advocacy groups and survivors had a glimmer of hope that this move could implement better legal corridors for victims across the bloc.

Nearly 70 per cent of rape survivors dropped out of the justice system in the fourth quarter of 2022, according to official UK government data. Reasons behind this withdrawal included court delays, low police conviction rates for perpetrators, and fears of reliving the trauma during a court trial. Furthermore, there is still the barrier of “perfect victimhood’ that many survivors are afraid they will not pass in the eyes of others. Many countries, such as the UK and Germany, operate based on the ‘no means no’ principle, meaning that if an individual rejects a sexual act, the other person must obey. Otherwise, it is a criminal offence.

However, countries like France, Poland and Hungary don’t even have ‘no means no’ in place. Therefore, a show of force is still required for an act to qualify as rape.

Other European nations have further legal grey areas based on outdated preconceptions such as the idea that rape only occurs by strangers, through excessive force, or requires the victim to fight back and optimally scream to be considered a crime.

Advocacy groups have long argued that these prejudices do not only limit the definition of rape but also marginalise and overlook lesser forms of sexual abuse—very much like the one my 18-year-old self experienced.

Yet, on 6 February 2024, when the EU finally reached an agreement that implemented EU-wide regulations for violence against women, expanding the definition of rape and consent was off the table. The deal was dubbed “historic” as the first of its kind and criminalised female genital mutilation, forced marriages, and cybercrimes such as cyberflashing, cyberstalking and incitement to violence online.

Nevertheless, its failure to include rape and consent, a key issue, was regarded with much criticism. A majority of EU countries, including Sweden and Germany, critiqued the legislation, arguing that it was overstepping its jurisdiction and would result in a bureaucratic overload for courts and businesses that were still operating on different policies. In its final stage, the resolution was ultimately vetoed by Germany, despite large criticism within the German government.

To many survivors, this highlighted the numerous things governments still fail to see and understand about the nature and severity of sexual assault.

What we don’t understand about sexual assault

The original draft failed to pass this February because it was based on the new ‘only yes means yes’ concept. It stipulates that consent must be explicit and cannot be assumed to have been given by silence or default. ‘Only yes means yes’ would also criminalise a range of acts and behaviours that have previously not been recognised as sexual violence, such as various forms of harassment and unwanted touching, in which victims were unable to defend themselves.

The introduction of the new concept coincided with a significant rise in sexual violence within the Union. Member states like Spain successfully adopted it, with the country’s congress implementing ‘only yes means yes’ back in 2022, following a notorious case in which five men raped an 18-year-old woman during the 2016 bull-running festival in Pamplona. In court, it was argued that video footage from the men’s phones, showing the woman immobile and with her eyes shut during the attack, was proof of consent.

Criminal investigators, psychologists and biologists have asserted numerous times that freezing is an involuntary response to danger. In the animal kingdom, freezing is a common instinct to avoid fights or play dead to avoid being seen and eaten by predators, for instance. Similar to freezing is the flop. It describes a reaction where the muscles become loose and the body becomes floppy to reduce the physical pain of what’s happening.

Yet, many laws against sexual violence still fail to validate and protect these natural responses by victims, due to their insistence on fighting back and screaming “no.”

Considering the lack of broad rape recognition across the bloc, this legislation was seen as the opportunity to implement improved legal corridors for survivors with a singular vote. Consequently, even German members of the European Parliament condemned the country’s decision to withhold the vote, which was counted as a veto.

SCREENSHOT spoke with European Parliament member Maria Noichl about the failure to pass an EU-wide ‘only yes means yes’ approach: “Victims will feel let down by the justice system and clearly seek less support as they will have the impression that society does not recognise them as victims.”

“It will furthermore have the effect of a secondary victimisation: survivors will have the impression that they even failed as a victim because they did not do enough while being attacked. This is a very dangerous sign to send, and very particular to this kind of crime. No one will tell you as a victim of theft that this crime will not be recognised as such, because you did not try to fight back. The criminal definition of rape is still a very sexist and discriminatory one in half of the European Member States,” Noichl continued.

The German Social Democratic Party member further affirmed that the ‘only yes means yes’ law will help survivors overcome some of the legal hurdles they are presently struggling with, such as providing evidence.

“We need to make sure that consent and the absence of consent is at the core of this crime definition. And that survivors do not have to deliver proof, but the defendants have to. This will make it much easier for survivors to access justice. And it will send a clear signal to society that silence is no consent. And sex without consent is rape,” she noted.

Implementing ‘no means no’ was a crucial step forward for many states like Germany in their fight against sexual abuse. However, it is becoming increasingly obvious that there are many areas this policy does not cover, for instance, situations in which a victim had a freezing or flopping response.

For this reason, Noichl further explained that it was crucial for legislation to evolve beyond ‘no means no’ to better protect survivors of sexual assault: “This approach leaves no grey area for doubt, no silence that could be misinterpreted. It’s the starting point of a conversation between people, checking in, and making sure that what is happening is really wanted by everyone. It is furthermore crucial to break stereotypes and end toxic masculinity.”

Whether the bureautic changes the new legislation would have caused are difficult to overcome has been hotly debated. Under the umbrella of the original draft, a lot of contradicting laws in the different member states would have been shut down, undoubtedly creating a big legal fallout.

So, the question that arises is whether this can be adequately measured against the pain of survivors and the protection and help the EU has promised them, particularly amid a surge in abuse cases.

Another reason why I did not want to include assault figures is down to the well-known fact that they are based on documented cases of abuse. The dark figure is still much higher, as many victims continue to fear coming forward.

Women of colour, for instance, are less likely to report these incidents because the media and popular culture don’t always depict our pain in a way that allows us to see ourselves as legitimate victims. We are still fetishised, over-sexualised and brutalised by overlapping forces of racism and sexism. 

With the new EU legislation, the justice system will not only remain unjust but inaccessible for many survivors, who will be told that they have consented by default in countries where consent even matters.

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