Challenging the Definition of Consent in Rape Laws: A Call for Legal Reform
Consent is a fundamental principle of sexual autonomy, yet its legal interpretation remains inconsistent and, in many cases, harmful to survivors of sexual and gender-based violence (SGBV). SAHR’s recent submission to the UN Special Rapporteur on Violence Against Women highlights the critical gaps in how rape laws define and apply the concept of consent across jurisdictions.
What We Seek to Address
Despite international legal progress, many countries still adhere to outdated “force-based” definitions of rape, requiring victims to prove physical resistance or injuries. This approach disregards the realities of coercive control, power imbalances, and trauma, which often prevent survivors from expressing overt resistance. Our analysis highlights:
The inadequacy of laws that fail to recognize psychological and social coercion as negating consent.
The need for survivor-centered legal frameworks that go beyond force to define rape in terms of absence of genuine, voluntary consent.
The challenges survivors face in proving non-consent, particularly in intimate relationships or coercive environments.
Key findings and issues across countries
Our comparative legal analysis revealed that:
Botswana has adopted a consent-based rape definition, but legal gaps remain regarding consent obtained through coercion.
El Salvador and Libya still rely on force-based definitions, disregarding cases where coercion, fear, or intimidation prevent resistance.
Colombia and Brazil acknowledge psychological coercion but lack clarity on how it negates consent in intimate relationships.
Equatorial Guinea and Cabo Verde lack explicit legal definitions of consent, leaving survivors vulnerable to misinterpretation by law enforcement and courts.
Key case examples
In Canada, consent is precluded where “the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority’ or where ‘the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreementing to continue to engage in the activity.”
Case of Gacumbitsi: The Chamber affirmed that the Prosecution is not legally required to adduce evidence of ‘words or conduct of the victim or the victim’s relationship to the perpetrator’ or ‘evidence of force’. If the conduct took place during a genocide campaign; within a detention facility; or as part of a widespread and systematic enslavement, the non-consent can be inferred.
Call to action
We emphasize the need for legal frameworks to evolve to reflect more nuanced understandings of consent and coercion. This in turn could be aided by more knowledge exchange and collaboration between justice actors and experts such as psychologists who are specifically trained on gender and sexual violence.
Join the conversation. Read our full report here!
