Consent discontentment: Battling for a rape law sea-change

‘No’ should always mean ‘no’, but opinion in Denmark is divided on whether legislation is the way ahead

It is estimated that 5,100 rapes and attempted rapes took place last year. However, only 944 of these cases were reported and there were only 60 convictions. Could that have something to do with the rape laws in Denmark and, if so, what can be done about it?

In the wake of the ‘Me Too’ and ‘Time’s Up’ movements that went viral on social media in 2017, sexual harassment has been heavily in the spotlight. This has accelerated the drive to change rape laws.

Grassroots pressure
A number of countries have already adopted a ‘consent-based’ approach. In Europe alone, Sweden, Germany, the UK, Ireland and Cyprus have all adopted such measures, and pressure is growing on Denmark to follow suit. The UK laws are actually 15 years old.

As the Danish rape law looks today, it is the presence of violence or threats of violence that determine whether there is rape. By adding consent instead of focusing on what the victim did to avoid being raped, one would ask what both parties did to make sure that sex happened voluntarily. The burden of proof still has to be lifted by the prosecutor, and the accused is still presumed innocent until proven otherwise.

Group efforts
In October last year, the justice minister, Søren Pape Poulsen, announced the setting up of an expert group to examine rape legislation that will also draw on the experience of other countries. In concrete terms, the group will examine the victim’s progress through the judicial system, the various measures to prevent rape, and the over-representation of foreigners as perpetrators in rape cases.

The minister stopped short of agreeing to the ‘consent-based’ approach, and he is not alone amongst his political colleagues. The minister for equality, Eva Kjer Hansen, recently told Avisen Danmark that the law should be amended to protect women better, but that she was not in favour of the type of legislation recently adopted in Sweden.

Dansk Folkeparti is more positive. “We’d like to see a situation in which the justice minister heads up a process that looks at models from other countries. We know Norway and Sweden have models different to Denmark, and we’d like to have an overview of the possibilities that they contain,” said Peter Kofod, DF’s spokesperson on legal matters. However the party is also unwilling to commit to legislation.

This was apparent when in November a proposal to introduce a consent-based law in Parliament from SF was defeated. Only SF, Alternativet, Socialdemokratiet and Radikale supported the idea when it came to a vote.

Outdated legislation
Amnesty International, which has just published a report on the issue, is represented in the expert group set up by the justice minister. An opinion poll carried out for the organisation by Voxmeter showed that 56.7 percent of women support a new rape law. However, only 33.1 percent of men agree that sex without consent is rape. Additionally, one in four people – 25.6 percent of men and 28.8 percent of women – are in doubt.

Helle Jacobsen, the organisation’s program leader for gender, told CPH POST how she has spent nearly two years researching sexual assault, rape and human rights in Denmark. In her research, she’s found that “gender stereotypes are one of the main problems for rapes in Denmark, and that we still are heavily influenced by gender stereotypes and notions on how men and women should behave.”

She also found that Danish legislation surrounding consent and sexual assault was shockingly outdated.

Currently, no laws in Denmark exist regarding consent. Sexual assault is only considered a crime if there is proof of physical resistance, threat or physical violence, and consent is conveniently absent from any written laws.

“If we had consent laws and consent culture, it would prevent rapes in the long run,” contended Jacobsen.

Look to Sweden
The Swedish laws state that a person must give clear consent, verbal or physical, or the act will be considered sexual assault under the law. The law came into force on 1 July 2018. It criminalises sexual assault and rape and makes it easier to convict perpetrators.

Under previous legislation, victims of sexual assault in Sweden had to prove the perpetrator had used physical violence or that the victim was in a vulnerable position, such as under the influence of alcohol.

Over the last three years, the number of reported rapes in Denmark has doubled. Part of the explanation for this increase is due to the new police records system. Previously, the police decided if they would register a reported rape as rape or simply give it an investigation number. Today, if a rape is reported, it must be registered as such.

The problem might also have something to do with the way that sexual consent is discussed throughout the educational system. Even at university level, the notion seems to be that assisting sexual assault victims is not a matter for the university.

Teresa Geertsen, a native Dane currently attending graduate school at Lund University in Sweden, told CPH POST this is normal.

“Consent was not even talked about at my bachelor’s degree in Copenhagen,” she revealed. “It’s very separate from our private lives. They see us as adults when we start university.”

Better sex education
Sex education in general is also under fire. “I think our sex education is not good, and it should play a role in terms of preventing rapes by teaching consent culture from a young age, which it doesn’t,” observed Jacobsen.

For international students studying in Denmark, the differences in consent standards and definition of sexual assault between, for example, the United States and Denmark can be a difficult cultural transition.

Susie Oliver, a psychology major from North Carolina, told CPH POST how she remembers learning before she came to Denmark that “consent in Denmark is respected, but not explicitly stated. Agreeing to go back to a guy’s apartment is often seen as consent.”

Empowering women
Geertson echoes Oliver’s statement. “It’s not talked about or taught that much – it’s just an unwritten or unspoken rule.” Yet, according to Jacobsen, because of the lack of consent in the rape legislation in Denmark, accountability in sexual assault cases is nearly non-existent, making it incredibly difficult to convict perpetrators.

“A law based on consent will deal with the current notion that it is the woman’s responsibility to fight back if she is raped. It will most likely lead to an increase in the number of reviews, and it will thus help to strengthen the legal certainty of rape victims,” says Jacobsen.

In addition, a new law will mean that Denmark lives up to its international human rights obligations, as Denmark has ratified the Istanbul Convention, which dictates that a rape law must be based on a lack of consent.

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