‘Without consent, sexual activity should be classified as sexual violence and you shouldn’t have to prove additional violence,’ says human rights lawyer
Greece has recognised sex without consent as rape, in a major victory for campaigners who had been protesting proposals which could have lowered the punishment for rapists.
The initial proposed changes sought to roll back the definition of rape, in terms of the physical threat it may present to a victim’s life.
If passed, it would have loosened the definition of rape and provided a wide berth for judicial interpretation – opening up the possibility for some rapes to be treated as misdemeanours rather than felonies and therefore punishable by as little as three years in jail.
The assumption in either law or in practice that a victim gives their consent because they have not physically resisted is profoundly problematic since experts have identified “involuntary paralysis” or “freezing” as a highly common physiological and psychological response to sexual assault.
Instead, however, Greece has now become only the ninth country in Europe to recognise that sex without consent is rape.
Eirini Gaitanou, Amnesty International’s Greece campaigner, said: “This is a historic victory, not just for the campaigners who have fought long and hard for this day, but for all women in Greece.
“This newly amended law finally recognises the simple truth that sex without consent is rape, and makes it clear that physical violence is not required for the crime to be considered rape.
“Shockingly, Greece will be only the ninth country in Europe to recognise that sex without consent is rape. However, today’s last-minute climbdown by the government demonstrates that change is possible and should give hope to people campaigning for consent-based laws wherever they are.”
She said all of those involved in the criminal justice system in Greece now need to be given clear guidance as to how this change in the law must be implemented for survivors to get justice.
The draft version of the law was condemned by female members in Prime Minister Alexis Tsipras’s ruling party and the Association of Judges and Prosecutors of Greece.
Critics argued the initial proposed changes to the definition of rape went against the Greek state’s commitment to a pan-European convention tackling violence against women. Greece ratified the Council of Europe’s Istanbul Convention – the most comprehensive legal framework that exists to tackle violence against women and girls, covering domestic violence, rape, sexual assault, female genital mutilation, so-called honour-based violence and forced marriage – last year.
In the UK, it still has not been ratified despite former prime minister David Cameron signing the convention in 2012 – meaning it is currently in limbo and the UK is not legally bound to follow it. The UK is one of the last EU members – along with Bulgaria, Hungary and a handful of others – to ratify the convention.
Alexandra Patsalides, a human rights lawyer at Equality Now, a non government organisation (NGO) which aims to promote the rights of women and girls, said the previous Greek bill defined rape on the basis of whether there is use of violence involving force or threats, and whether or not the victim resisted.
She earlier said: “We are deeply concerned about the direction the Greek government is taking by defining rape in a manner that does not adequately protect women. Sexual activity should be engaged in willingly and voluntarily by all those involved, and this should be assessed on a case-by-case basis taking into account the surrounding circumstances.
“Without consent, sexual activity should be classified as sexual violence and you shouldn’t have to prove additional violence. Rape is inherently violent and just because someone doesn’t have physical injuries doesn’t mean they haven’t been violated.
“Sometimes a victim is unable to move or speak because they are too scared or incapacitated, such as if they are drunk or asleep. Coercive or controlling relationships or the threat of violence may also prevent a physical struggle.”
She described rape as a serious act of violence and said perpetrators should be penalised accordingly. Ms Patsalides said it would send an “objectionable message” that sexual violence will be tolerated if they are not – adding that this fosters a “fertile ground for further abuse”.
Amnesty International hit out at the proposed changes to the rape definition in a previous legal submission – arguing focusing on resistance and violence instead of consent would impact both the reporting of rape which is generally very low but also social awareness of sexual violence.
“Both of which are key aspects of overcoming impunity for these crimes and preventing them from happening,” the human rights organisation added.
It argued that in both current and proposed versions of Article 336 – where the current legal definition of rape in the Greek Criminal Code is found – rape cases where physical force, its threat or proof of resistance or inability to resist are not shown are likely to fall through the cracks of the legal system and cases where physical violence or threat of it were not used will “rarely make it to court”.
The organisation argued the draft version of the law would not cover rape cases where the victim “acquiesced to sex under duress by the perpetrator” such as when the wrongdoer either blackmailed the victim or used non-violent threats.
Amnesty International previously analysed rape legislation in 31 countries in Europe and found that only eight of them have consent-based legislation in place. Those countries are the UK, Sweden, Ireland, Luxembourg, Belgium, Cyprus, Iceland and Germany. For the crime to be considered rape in the other European countries, the law requires for example the use of force or threats, despite the fact this is not what happens in a great majority of rape cases.