Lessons from Norway: Consent v. Coercion in Laws Punishing Sexual Assault

by Heather DeMocker

When I was 19, I had the privilege of studying abroad at the University of Oslo in Norway, where among other classes about human rights and criminal justice, I took a course called Feminist Perspectives on Criminology, Sexuality and Violence. In Fem-Crim, as I lovingly began to call it, one of our formative units — and later our final paper — focused on how different countries define rape and sexual assault in their legal codes. As April is Sexual Assault Awareness Month in the United States, I revisited this paper as an op-ed for NARAL Pro-Choice Maryland’s blog.

When we think about sexual assault or rape, one of the first things that come to mind is consent. Was consent given? Was it given soberly and freely? Could it have been implied? In the United States, consent is the legal basis for prosecuting sexual assault and when I sat down for my first Fem Crim class, “consent” was the only framework I had. But my new home, Norway, used something different.

Norway’s sexual assault laws are based on coercion — whether the perpetrator of an assault used manipulative means, such as physical or socio-political power, to achieve sex. At first this seemed odd to me. Isn’t “consent” the difference between sex and assault? As I would later learn, it’s not; there’s much more than can be summed up in a simple “yes” or “no.” Coercion-based laws are better equipped for prosecuting sexual assault as they address historical gender inequalities, grant victims access to the legal system, and are more in line with feminism today.

Sexual Assault Laws: the Beginnings

In 1870, British common law first defined rape as, “the carnal knowledge of a woman by force and against her will” (Murphy, 1996; Caplan-Bricker, 2014). The key themes of coercion (“by force”) and consent (“against her will”) are found in all subsequent laws punishing sexual assault. In Commonwealth countries, sexual assault was originally considered a crime of “male property violation,” as daughters belonged to their fathers until they became wives belonging to their husbands (Mandal, 2014). To prove non-consent, a victim was “required to resist, sometimes to her dying breath,” to preserve her chastity and a husband’s right to her body (Caplan-Bricker, 2014). For years, there was little concern over how sexual assault harmed the victim’s bodily and sexual autonomy, not to mention mental and physical health.

This began to change in the 1970s, where decrying violence against women became a rallying point for Second Wave Feminism (Caplan-Bricker, 2014). Here, activists fought to criminalize intimate-partner rape, enact “shield” laws protecting victims’ privacy, and remove resistance standards when prosecuting sexual assault. Although the “utmost resistance” standard was struck down in the United States, the onus often remains on the victim to prove their non-consent beyond a reasonable doubt.

What We Know: Consent-Based Laws

A majority of penal codes define rape as sexual intercourse without consent, a classification considered an international human rights standard after the European Council’s Istanbul Convention (2011). The United States’ Uniform Crime Report (2013) gives a concise example of consent-based law:

The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by the sex organ of another person, without the consent of the victim.

This definition does not require “use of force”and expands the range of penetrations punishable by law. As Anna Błuś of Amnesty International argues, victims’ resistance is often fueled by fear that, without physical proof of non-consent, a criminal case offers little remedy for the trauma endured. (For example: Diana Quer, who was strangled to death for resisting assault in Spain).

Consent-based laws are viewed positively (in academic and beyond) as both “symbolically important and a welcome policy measure that endorses communication between sexual partners” (Larcombe et al., 2016) These laws lessen focus on a victim’s “duty to resist” and highlight the responsibility to ask for affirmative consent. By solely defining rape as non-consensual sex, the hope is that more survivors — knowing the legal system will protect and believe them — can come forward to hold their assailants accountable.

Let’s stop for a moment.

If you’re starting to see flaws here, I’m right there with you. If consent-based laws are supposed to be so effective, then why are 3 out of 4 of assault cases never reported? While understandably well-intentioned, these laws have a darker underbelly.

Consent-based laws still focus on the actions of both the accused and victim, and tend to favor the accused. Prosecutions may be undermined by “reasonable belief” standards that place undue attention on a victim’s behavior. In Commonwealth countries like Australia and New Zealand, defendants can be acquitted of rape if they “reasonably believed” a sexual encounter in question was consensual, as based on outdated “assumptions that consent can reasonably be inferred from the [victim’s] flirting, … accompanying the defendant to a bedroom … or evidence of attraction” (Larcombe et al., 2016). Only in sexual violence crimes are a victim’s actions so heavily scrutinized. Given continual focus on a victim’s actions, consent-based laws are failing to keep pace with evolving attitudes about sexual violence.

Enter: Coercion-Based Laws

Coercion-based laws seek to fill the gaps in consent-based legislation by criminalizing sex acts achieved through manipulation and force in addition to recognizing historic patriarchal power over women (Larcombe et al., 2016; West, 2016). These laws focus entirely on actions taken by the perpetrator to achieve the assault, rather than the victim’s actions to deter said assault. For example, the Norwegian Penal Code states rape is committed by anyone who:

a) Obtains sexual activity through violence or threatening conduct,

b) Engages in sexual activity with a person who is unconscious or for other reasons incapable of resisting the act,

c) Through violence or threatening conduct makes a person engage in sexual activity with another person, or perform acts corresponding to sexual activity on himself/herself.

Laws based solely on consent are dangerously under-inclusive for their failure to criminalize rapes that are coerced, but arguably consensual. These include “date rape”, martial rape, and rape of sex workers. Criminalizing these sex acts also better reflects modern feminism and ideas of what constitutes assault. Coercion-based laws can also circumvent victim-blaming narratives, which often stem from intense focus on the actions, judgments, and consent of the woman. If forgetting to set the anti-theft alarm at night doesn’t excuse thieves, why should analogous judgment of a rape victim excuse rapists?

These laws also address historic, gendered power imbalances that are largely ignored by other legislation. Historically, rapists are men with power — physical, socio-political, or otherwise — and rape victims are women without power (Mardorossian, 2002; West, 2016). In an example from the #MeToo Movement, an actress may agree to sleep with Harvey Weinstein not because she would naturally consent to doing so, but only because he holds the key to her potentially successful career. Here, Weinstein uses his power over the actress’ future to coerce her into seemingly consensual sex for which, under consent-based law, he cannot be legally punished. Without coercion-based laws cognizant of this, rapists can exploit their patriarchal power while legal redress remains out of reach for their victims.

So Where to Next?

Personally, I believe the greatest potential for near-future reform lies in amending current legislation to prosecute both nonconsensual and coerced sex as rape. Logically speaking, it is also easier to add provisions to existing laws than it is to replace them entirely. Consent is a solid starting point, but if sexual assault is truly considered among the most heinous crimes, laws must reflect that seriousness by criminalizing a wider range of sexual violence. By focusing on the rapist’s power and actions to achieve sex, coercion-based laws minimize victim blaming and address women’s hard-fought battle from exploitable property to empowered personhood. These provisions must allow for coerced sex to be prosecuted with a ferocity equal to, if not stronger than, that with which non-consensual sex is prosecuted. As showcased especially by the #MeToo Movement, coercion-based laws fill the gaps in consent-based legislation by recognizing historical abuses of patriarchal power, women’s socioeconomic empowerment, and our ever-evolving conceptualization of what constitutes sexual assault and violence.

This blog is taken by the author from her original paper, “Consent versus Coercion: A Feminist Analysis of Legal Strategies Prosecuting Rape”.

Academic References

Caplan-Bricker, N., (2014, May 7). There’s a Legal War Over the Definition of Rape. Retrieved May 31, 2018 from The New Republic website: https://newrepublic.com/article/117630/jed-rubenfeld-rape-law-feminists-debate-force-versus-non-consent.

Larcombe, W., Fileborn, B., Powell, A., Hanley, N., & Henry, N. (2016). ‘I Think it’s Rape and I Think He Would be Found Not Guilty’: Focus Group Perceptions of (un)Reasonable Belief in Consent in Rape Law. Social & Legal Studies, 25(5), 611–625. http://doi.org/10.1177/0964663916647442.

Mandal, S., (2014). The impossibility of marital rape. Australian Feminist Studies, 29(81), 255–272. http://doi.org/10.1080/08164649.2014.958124.

Mardorossian, C. M. (2002). Toward a New Feminist Theory of Rape. Signs, 27(3), 743–775.

Murphy, T. W., (1996). A matter of force: The redefinition of rape. Air Force Law Review, 39, 19–36. Retrieved from http://www.d.umn.edu/cla/faculty/jhamlin/3925/Readings/Force.html.

United Nations, (2009). Handbook for Legislation on Violence Against Women. Retrieved from http://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislation%20on%20violence%20against%20women.pdf.

West, R. (2016, March 15). On Rape, Coercion or Consent [Review Conceptualizing Rape as Coerced Sex]. Retrieved June 2, 2018, from Jurisprudence Jotwell website: https://juris.jotwell.com/on-rape-coercion-and-consent