Why criminalising sex without consent must be the next step for all of Europe

Across the EU, women continue to experience sexual violence that is invisible in law. Many perpetrators evade justice because, in several Member States rape is still defined through a narrow lens of force, injury or physical resistance.

There, women who have been coerced into sex, manipulated, too frightened to resist, or been so shocked that they didn’t physically fight, have little or no protection.

As countries update national legislation to implement the new Directive on Violence Against Women, they face a crucial choice.

Do they treat sexual violence as a crime of non-consent?

Or do they cling onto systems that require survivors to prove they fought back?

For Ireland, which adopted a consent-based definition in 2017, the shift changed what the justice system was able to see.

But as Clíona Saidlear, Executive Director of Rape Crisis Ireland, explains, the legal change is only the starting point.

“For those of us now living under a consent-based regime, it feels like common sense. But it’s very recent. Before 2017 and before that consent-based definition of rape, you effectively needed evidence of force or injury,” she says. 

“Survivors were asked why they didn’t resist, where the bruises were. The definition simply didn’t reflect the reality of trauma.”

Understanding the trauma responses that law must recognise

One of the most powerful shifts in Ireland has been recognising that fighting back is just one of several instinctive trauma responses to sexual violence.

Clíona explains that many people recognise the “three Fs”, fight, flight and freeze. But a fourth response is less widely understood: fawn.

“That is where someone cooperates out of fear, anticipating the perpetrator’s needs so they survive,” she says. “The survivor may appear compliant. But terror is not consent.”

These trauma responses mean many women do not, and cannot, fight back. A law that requires proof of resistance effectively erases their experiences.