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Is non-consensual sex rape? Most European countries say 'no'

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Is non-consensual sex rape? Most European countries say 'no'

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Sexual abuse and rape. The difference between two terms in the eyes of Spanish courts have prompted outrage and the dawn of the country's own #MeToo movement after a group of men in the "Wolf Pack" trial were cleared of rape and found guilty of the lesser charge of sexual abuse.

Spanish law says that rape must involve violence or intimidation, whereas sexual abuse does not. The verdict in the Pamplona trial ignited calls for legal reforms that dictate rape is non-consensual sex regardless of whether violence or intimidation occurred.

While Spain is currently in the spotlight for its legal technicalities — it is not the only European country that does not recognise sex without consent as rape.

Anna Blus, Amnesty International's researcher on women's rights in Europe, has focused her latest research on rape laws throughout the continent and found that only seven countries within western Europe and the EU have legislation that define sex without consent as rape.

The UK — including the courts of Northern Ireland, Scotland, England and Wales — Belgium, Cyprus, Luxembourg, Iceland, Ireland and Germany define non-consensual sex as rape. Sweden is slated to join the list in July, when parliament is expected to pass legislation.

Amnesty International's definition of rape is guided by international human rights law, and refers to the Istanbul Convention, which is considered the most comprehensive legislation on tackling violence against women, for the legal definition of rape. The convention defines rape as the absence of consent, stating that "consent must be given voluntarily", and requires all signatories to include laws that define rape as such.

Twenty European countries have ratified the Istanbul Convention — but most have yet to change their laws to bring them in line, according to Blus.

Pamplona: A different verdict?

For the accused in Pamplona, known as the “Wolf Pack” after the name of their WhatsApp group where they shared recorded video of the attack and joked about the incident, critics say the lesser charge of sexual abuse did not go far enough and that the nine-year sentence was too lenient.

“This case really shows exactly what can happen if legislation doesn’t recognise sex without consent as rape. Because I think this judgment is exactly what it did," said Blus.

Without finding intimidation, threats or violence, according to Blus, "The [judges] were unable to find that the sex without consent, in her case, was actually rape."

“So I think this case really shows society how even such a technical thing, such as changing the legislation to be human rights compliant…the judges may have been able to arrive at a different conclusion in her case."

Effective rape legislation in Europe?

Even when considering the seven countries who define non-consensual sex as rape, the continent still has a ways to go, she says.

“The vast majority of European countries are not up to speed," Blus said to Euronews.

"It’s really an issue throughout the region. This can be, from what I’m discovering, on the one hand, basic things such as not recognising legislation that sex without consent is rape and, on the other, practice: the widespread myths and stereotypes, the cases where we see how it’s the victim who is questioned in court, it’s asking questions such as ‘Were you drunk?’ and really victim blaming."

"It’s something that happens all the time to women throughout Europe. So I don’t think we can say, unfortunately, there is one country that has been doing something extremely positive."

“What is kind of giving me hope at the moment is the fact that Iceland recently changed the law and that Sweden is very likely to do so as well."

Are consent-based definitions enough?

A high-profile rape trial in Belfast involving two Irish international rugby players and two of their friends drew protests across the UK and Ireland after the four defendants were acquitted on all charges. The case proved highly divisive on the island of Ireland, and protesters took to the streets and social media to take part in the 'I believe her' campaign. Others were also quick to defend the accused.

Northern Ireland is one of the jurisdictions that defines non-consensual sex as rape, but, Blus says, it is one example of how legislation is only one step of a package of reforms that are needed to prevent rape and to bring about justice.

“In that case the alleged perpetrators were acquitted because the court didn’t find that, even though there is a consent-based definition in that jurisdiction, they didn’t find that the prosecution proved that a rape has occurred.”

According to Blus, steps need to be taken to protect complainants, such as having a lawyer also represent the victim during a trial.

"What was extremely problematic in that whole trial was the treatment of the complainant: the way it was reported by the media, the way she was questioned in court for a very long time by four defence lawyers without having a lawyer that would represent her in any way, or even accompany her… her credibility was questioned constantly. It was almost as if she was the one who was on trial.”

Blus adds that those involved in the criminal process — judges, prosecutors and police — also need more education on what happens when someone is sexually assaulted.

“For example, the fact that many people freeze (when they are sexually assaulted). So looking at getting all these people trained in addressing and preventing sexual violence and recognising gender stereotypes — these are all parts of the package," said Blus.

“I think that this Belfast case really shows that even when you have very good legislation and when you have human rights compliance legislation — that is only one element of this package that should be there for survivors to access justice in rape cases.”