Legal scholar: Consent bill fails to define its terms
A bill which may pass at the Riigikogu this year requires clarification on what consent actually is, in the context of sexual activity, one expert says.
Whereas under current Estonian law, in cases of sexual assault, the victim's capacity to resist the assault must be established, if and when the consent law passes into force, the question which must be established is whether the victim expressed consent to the sexual activity. If it is determined that they did not, a crime will have been committed.
Mario Truu, head of the Criminal Law Department at the University of Tartu's Faculty of Law, said despite this distinction, the bill in its current form still needs clarification on what constitutes consent.
"The bill does not define what constitutes consent, and it leaves too much to the courts to decide — when there is consent, when there isn't, and when rape has occurred. But the legislator should still provide sufficient reference points, such that the courts can apply it and ensure that the new provision can be implemented without violating the Constitution," Truu said.
The Riigikogu Legal Affairs Committee and Social Affairs Committee on Tuesday heard the positions of various stakeholders. Committee chair Madis Timpson (Reform) said the committee also has proposals on clarifying the bill's text. "The text is not finished. That's the beauty of the committee: We discuss how to phrase it best. There are people on the committee with different worldviews. There are supporters and opponents. There are people who think nothing needs to be done. And there are those who believe we should move with the times and align with the spirit of the Istanbul Convention," Timpson said.
Hannaliisa Uusma, head of the domestic violence prevention program at the President Kaljulaid Foundation, said that a consent-based approach is needed to better protect victims of sexual violence. It is likely that these types of crimes will also be reported more frequently, on that basis, she said, based on empirical data from countries where consent-based approaches are already used.
"Many countries in Europe and elsewhere have adopted a consent-based approach, and it shows that the number of people seeking help increases. In Estonia, very few seek help, but I hope that the number of help-seekers will also grow here," Uusma said.
The draft has passed its first Riigikogu reading and according to Timpson, the Riigikogu is expected to adopt it later this year. Substantive amendments may be made to a bill between the first and second readings; between the second and third readings, only minor changes can be made. Once a bill passes, it is sent off to the president for his assent.
The Istanbul Convention is a Council of Europe treaty aimed at preventing and combating violence against women and domestic violence, and Estonia is a signatory. Latvia's parliament, the Saeima, recently passed a bill to withdraw from the convention.
The Ministry of Justice and Digital Affairs says the consent bill's aim is to protect all people from sexual violence, to ensure sexual relationships are consensual and to ensure that no one can be exploited in situations where they are not truly willing.
The bill should not be taken to mean the principle of the presumption of innocence with regard to those accused of sex crimes goes out of the window; rights such as that of the suspect not to give testimony, and the principle of the prosecution having to convince the court of the accused's guilt, remain intact, the ministry says. This means victim testimonies may not be sufficient for a conviction.
The ministry says a consent-based approach means that ahead of engaging in sexual activity of any kind, all parties must ensure that other parties agree to it. Consent must be clearly expressed, verbally or non-verbally; if consent is absent or the situation is not clear, sexual activity must not be initiated.
This differs from the previous understanding whereby, for instance, a rape is taken to have happened only when duress, threats or violence are used, or when the victim is in a helpless state, for instance due to alcohol consumption.
Consent means agreement regarding what will happen — i.e., knowledge and understanding of the forthcoming activity, agreed upon in advance and pre-existing it, the ministry says.
The right to sexual self-determination applies at all times, and if a person feels they do not want to continue with the agreed-upon activity, they have the right to say so, and the partner must respect that. If the nature of the activity changes, or the partner plans something that alters the essence of the act, it is necessary to ensure the other person also agrees—verbally or in another clearly understandable way.
The ministry also notes that the perpetrator, and not the victim, is always responsible in sex crimes, which have no place in civilized society.
In addition to the emergency number, 112, the Social Insurance Board (SKA) operates a 24/7 victim support crisis line on 116 006. This applies both for recent incidents and for historical cases of sexual violence. Information from SKA's site in English is available here and here, and women's support centers are open 24/7 and can be contacted here.
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Editor: Andrew Whyte, Johanna Alvin
Source: 'Aktuaalne kaamera,' reporter Anne Raiste.
