While there are problems associated with a definition of sexual assault focused solely on force, there are also problems inherent in definitions focused on consent. Although consent remains an appropriate baseline for defining sexual assault, a Dublin report on rape victimization recommends consideration of alternative definitions that may not be "so reliant on the need to prove lack of consent." From Ivana Bacik, Catherine Maunsell, & Susan Gogan, The Legal Process and Victims of Rape 2, 5 (September 1998).
Although consent should be the central focus of any definition of sexual assault, it, too, can present challenges in a legal context. For many forms of sexual assault, there are unlikely to be many witnesses to the crime. As a result, the trial may involve testimony by both parties, at which point it may become a contest of wills and credibility. Further, myths about sexual assault—such as the myth that true rape is only that which is resisted by the victim—can find their way into the issue of consent, as decision-makers may be more likely to believe that a woman who did not forcefully resist had consented to the sexual contact in question. From Dorothy Q. Thomas & Robin S. Levi, Common Abuses Against Women, in 1 Women and International Human Rights Law 139, 197 (Kelly D. Askin & Dorean M. Koenig eds. 1999).
In other words, a consent-based definition can result in the perpetrator's guilt turning on the victim's behavior. As explained in a Dublin report on rape victims' experiences in the legal system, "if the definition is based on the need for the prosecution to prove lack of consent, then the legal process is focused on her behaviour and reaction to the sexual violence." From Ivana Bacik, Catherine Maunsell, & Susan Gogan, The Legal Process and Victims of Rape 2 (September 1998).
Other reports, however, have suggested that statutory schemes avoid some of the potential obstacles to victims by clearly defining the term "consent." Because the "consent/non-consent dichotomy is too narrow to allow for women's experience since the laws are made and interpreted by males," the definition of consent "needs to be spelled out or it ends up with a definition used in practice that is based upon sexist attitudes." From Patricia Weiser Easeal, Violence Prevention Today: Rape (October 1992).
At the very least, whatever definition is chosen, "[i]t should be made clear in every legal system that failure to offer resistance is not the same as consent." From Ivana Bacik, Catherine Maunsell, & Susan Gogan, The Legal Process and Victims of Rape 2, 5 (September 1998).
An alternative sexual assault law broadly defining sexual violence may be found in the United Nations expert group report entitled "Good practices in legislation on violence against women" Section 4.C.i. For the Russian version of the report recommendations, click here.
Recent reform efforts in the United States have focused on making consent an affirmative defense. In many jurisdictions, elements such as consent can be either a part of the definition of the crime or an affirmative defense to the crime. When consent is an element of the crime, the prosecutor must prove that the woman did not consent. When it is an affirmative defense, the accused must prove that the woman did consent. Making consent an affirmative defense thus shifts the burden from the prosecution to the defense.
At the same time, however, while such burden shifting may be useful, it can have unintended consequences if the prosecutor is held to a higher standard than is the defendant, as is the case in the United States. That is, while a prosecutor must prove that a woman did not consent beyond a reasonable doubt, the defendant is only required to prove by a preponderance of the evidence that she did consent to be acquitted.
Finally, most criminal statutes also require the prosecution to show the defendant's intent, knowledge, recklessness or negligence (often called the mens rea). They require that the prosecution show that the defendant specifically intended to have sexual contact with a nonconsenting victim; that the defendant knew the victim did not consent to the contact; that the defendant was reckless with regard to whether or not the victim consented; or that the defendant was negligent with regard to whether or not the victim consented.
These obstacles are complicated further by subjective and objective knowledge tests. In other countries, such as England and Ireland, the mens rea of sexual assault is a subjective test; in other words, the crime requires the defendant to have subjectively believed that the victim did not consent to the contact in question. The result of such subjective tests is that the defendant "will be acquitted if he honestly, however unreasonably, believed that she was consenting. From Ivana Bacik, Catherine Maunsell, & Susan Gogan, The Legal Process and Victims of Rape 2 (September 1998).
Adapted from Dorothy Q. Thomas & Robin S. Levi, Common Abuses Against Women, in 1 Women and International Human Rights Law 139, 198 (Kelly D. Askin & Dorean M. Koenig eds. 1999); 1997 Report of the Special Rapporteur on Violence Against Women, Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms (E/CN.4/1997/47) (12 February 1997); Neal Miller, Review of State Sexual Assault Laws: 1997 (7 October 1997); Laura Russo, Date Rape: A Hidden Crime, Australian Institute of Criminology (June 2000).