ABSTRACT
For decades, the lawsgoverning sexual offences have measured consent by the presence ofstruggle, often filled with assumptions that prioritise the perspective of the accused and overlook the realities of victims. However, the gravest violations occur in the silence between a ‘NO’ that was never heard and a ‘YES’ that was never given. This leaves a grey area as to how consent should be assessed: whether through a resistance model, which requires a clear refusal and the presence of resistance or should it be a “Yes means Yes” framework where only explicit and voluntary agreement constitutes consent.
The research employs a qualitative comparative legal analysis, examining jurisdictions of Sweden, Spain, and India that represent different stages of transition to the proactive consent framework. It compares global implementations of this framework and scholarly critiques to assess whether the affirmative consent framework yields improved judicial outcomes or merely changes the legal terminology. This normative approach further investigates the framework’s efficacy, particularly regarding evidentiary standards, the burden of proof, and trial outcomes, to assess its global scalability for adoption.
Furthermore, the findings of the research suggest that while the proactive consent framework stands strong in acknowledging the complexities of trauma, its success cannot be ensured by legislative changes alone. There is a need for procedural reforms, including codifying the affirmative duty to seek consent, introducing trauma-informed jury instructions and enhancing judicial sensitisation to bridge the gap between law and practice.
Ultimately, the research concludes by arguing that the shift to an affirmative consent standard is a significant step towards a “human rights-driven” legal framework that prioritises sexual autonomy, but also needs institutional and policy reforms alongside to support its fundamentals in the long run.
Keywords: Affirmative Consent, Comparative Criminal Law, Consent, Sexual Offences, Burden of Proof, India, Sweden, and Spain.
- INTRODUCTION
In recent legal and academic debates, the “No Means No” approach is considered old-fashioned because it rests on outdated notions of force and resistance. According to academics, this passive approach fails to account for the neurobiological responses to sexual assault, particularly “tonic immobility” or the “freeze” response, in which a victim is physically incapacitated from resisting or refusing sexual contact. On the other hand, the affirmative consent or “Yes Means Yes” model is founded on the idea of sexual autonomy, which is also endorsed by international agreements like the Istanbul Convention. According to legal theorists such as Lois Pineau and Michelle Anderson, in a just society, sex should be a communication and a positive consent between the parties involved. Traditionally, laws surrounding sexual offences were based on the “doctrine of resistance”, which defined rape based on the use of force. For over 100 years, it was thought that a “real” victim would have resisted. As a result, the law emphasised injury and resistance, rather than consent. But standards at the international level are now shifting towards a communicative understanding of consent. This emphasises a “force-based” approach to an “autonomy-based” approach. According to this new interpretation, rape is no longer seen as a form of violence, but also as a form of sexual autonomy. It is a consequence of the new understanding that sexual practices should be premised on voluntary consent and not just the absence of resistance. Despite this change, the “No Means No” model still presents problems because it doesn’t take into account trauma responses. The resistance model is predicated on the wrongful assumption that victims will be able to resist or say no. In fact, many victims are paralysed by the “freeze” response during sexual assault, and are unable to verbally or physically resist. This results in a failure of law to recognise cases of non-violent coercion or cases where a victim did not resist, but also did not consent. The concept of the “ideal victim” who is supposed to resist at all costs can result in secondary victimisation in the justice system. This makes it difficult for many survivors to be granted justice because their response to the trauma doesn’t align with what is considered “normal”. The purpose of this research is to explore whether the “Yes Means Yes” approach can address these issues and enhance justice responses. The affirmative consent law focuses on whether the victim consented, rather than whether they resisted. It seeks to better protect sexual autonomy and eliminate confusion about sexual assault. This paper aims to show that while the “Yes Means Yes” model is a step in the right direction to a more human rights-compatible legal system, it is not enough to secure justice. This research compares Sweden, Spain and India to find out whether the “Yes Means Yes” model really protects victims and makes the law simpler, or whether “rape myths” within the legal system simply transfer difficulties of the law to other issues, such as the alleged perpetrator’s “reasonable belief” in consent.