ELI Proof of Consent and Its Knowledge in the Law of Sexual Offences

Background

According to international human rights courts and treaty bodies, as well as United Nations reports, sexual offences must be defined in terms of the absence of the complainant’s consent. Reflecting this consensus, many European jurisdictions have, in recent years, enacted legislation grounded in a consent-based approach to sexual offences. Much of the legislative discourse has centered on the so-called ‘model question’, whether to adopt a ‘Yes means Yes’ or ‘No means No’ framework for defining consent. However, in practice, the choice of model is not the decisive factor in the effective implementation of consent-based sexual offence laws.

Despite differences in doctrinal definitions of consent and in evidentiary standards across jurisdictions, legal practitioners, judges, prosecutors, defence counsel, and victim representatives, are confronted with the same core challenges in the courtroom: What precisely does ‘without consent’ or ‘against the will’” entail? What actions, omissions, or contextual factors constitute relevant evidence in establishing both the actus reus and mens rea? And how should such facts be interpreted to ensure the fair and principled application of the law?

Aim

This project seeks to provide authoritative guidance on the implementation of consent-based sexual offence laws that is doctrinally sound and consistent with fundamental rights protections. Its objectives are threefold:

• To support the coherent evolution of substantive and evidentiary law in this area;
• To contribute to the harmonised and rights-compliant implementation of the Istanbul Convention;
• To promote consistency, best practices, and legal certainty across EU Member States.

Outcome

The project will culminate in a set of Guiding Principles designed to assist stakeholders in the criminal justice system, particularly in cases where the absence of consent is not predicated on violence, coercion, or physical incapacitation, but rather on more nuanced and context-dependent circumstances. These Principles are intended to support judges, prosecutors, defence lawyers, complainants’ legal representatives, and police officers in interpreting and applying the law in a manner that is both just and aligned with international human rights obligations.

By fostering consistent interpretation and application of consent-based sexual offence laws, the project aims to strengthen the implementation of the Istanbul Convention and ensure convergence with broader international and European standards, particularly in relation to fundamental rights and due process.