Call for input to the addendum to the report of the Special Rapporteur on violence against women and girls to the HRC on the concept of consent in relation to violence against women and girls 2025
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a. On Consent
Consent, understood as agreement, is a strategy of patriarchy to naturalize men’s power over women, and to obtain access to women’s sexuality and women’s reproductive capacity. Through consent, patriarchy commodifies women and also benefits from their underestimated social role in motherhood and domestic care. Conceptualized in the Greek democracy as “election”, it is often accompanied in law by other terms such as “free and individual will”, “autonomous”, “informed”, “consensual”, “effective”. In the system of patriarchy marked by male dominance over women in all spheres of life, ‘consent’ allows for the realization, imposition and justification of men’s sexual and other desires, wishes, gratifications and rules leading to their execution, by placing all responsibility on women who ultimately accept (or not) – with different degrees of enthusiasm, as well as authorize, adhere, comply, give in, go along, tolerate, yield, sacrifice, compromise, renounce, resign, capitulate, acquiesce, are persuaded, trapped, pressured, shocked, surprised, controlled, submitted, are powerless and finally, subordinate to them. ‘Consent’ turns desires into entitlements, “rights” and privileges for men, including the right to manipulate, humiliate, pressure, abuse, disregard refusal, harass, threaten, commit sexual violence against women and sexually exploit women and girls; that is, it allows for the exercise of oppression over a whole class of people, -women and girls both in private and in public-.
Patriarchy counts on sociocultural expectations as well as powerful industries such as the beauty, fashion, surgical interventions, entertainment, among others, that sexualize and commodify women and naturalize masculinity and femininity, as a complementary system in which the former dominates over the latter. Using ‘consent’, helps deny the imbalance and abuse of power and unequal relationships between women and men, while it obscures harms and previous trauma, vulnerability and victims’ inability to set limits because of this. The use of ‘consent’ on behalf of the initiator of a sexual advance or other interest related to women’s reproduction – usually males – helps to obscure women’s true desires, beliefs, interests, willingness, needs, emotions and changes, while it helps avoid any responsibility for reciprocity, pleasurable, protective, satisfying, rewarding and comforting relationships, commitment, mutuality, acceptance of limits, change of mind and refusal in sexual relationships. The use of consent helps naturalize industries that make women and girls responsible for their exploitation and violence perpetrated against them, under euphemisms such as “sex worker”, “surrogate motherhood”, “porn model or actress”, among other forms of sexual and reproductive exploitation, because they “consented”.
In cases of the sexual violence, victim’s behaviour, her social status, the relationship between the complainant and the alleged perpetrator, her clothing, past sexual conduct, and authorities’ own representations of female sexuality is often scrutinized to see whether she bears some responsibility for the violence she is reporting, or even whether she is lying. Perpetrators often acknowledge the sexual act while claiming that it was ‘consensual’, or that they believed or ‘misinterpreted’ it was, and they count on entrenched sexist stereotypes influencing courtroom decisions. In practice, judges frequently weigh numerous irrelevant factors deriving from the dominant idea of the “ideal victim behaviour” when assessing rape victims’ consent, or on the contrary, disregard relevant factors such as duress, threats, stupor, vulnerability, and moral coercion which can contribute to victims’ inability to respond. These considerations contribute to victim blaming and re-traumatization of victims, with a negative impact on the number of complaints and charges.
It remains challenging for a woman to convince the public, law enforcement, or the judicial system that she did not consent to sexual intercourse unless she suffers physical injuries or can demonstrate resistance. Proving non consent typically necessitates showing substantial physical harm beyond just evidence of penetration.
b. On Irrelevance of Consent
The 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others focuses on the conduct of those who exert relationships of power, abuse, profit of others, even with the consent of those persons. Later on, in the Palermo Protocol, the definition of trafficking in persons for the purpose of prostitution of others and other forms of sexual exploitation, includes irrelevance of consent when coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits are used to achieve the consent of a person having control over another person, for the purpose of exploitation.
These instruments recognize that victims may seem to “consent” to their trafficking and exploitation, because different methods of coercion are used, and place the burden of proof on the perpetrators, rather than on the victims. No amount of consent on behalf of a victim -for example under subjective experiences of pleasure, love, protection, need- can erase the abusive or exploitative conduct of the perpetrator, while it emphasizes that under the dignity and the worth of the human person no one can consent to their own exploitation.
Similarly, irrelevance of consent is applied to children and adolescents, under the Convention for the Rights of the Child with minimum ages explained in the Committees General Comment No. 20 (2016) among other comments. These measures are taken in order to protect children and adolescents from making choices and/or from taking responsibility for actions that they do not have the capacity to understand entirely and comprehend the full consequences. Their lack of experience, psychological maturity, impossibility of perceiving themselves as victims, and even the impossibility of taking responsibility for social demands (like education and employment), call for a minimum age of consent that helps develop their full potential in a protective environment. Minimum age related to marriage with or without parental consent is recommended at 18.
A holistic and consistent approach should consider equal minimum ages other areas like sexual consent, medical consent, admission to employment, end of compulsory education, digital consent, to safeguard children and adolescents from the effects of risks, norms, influences, imbalance of power and socio-economic conditions that may lead to actions and choices that impair development and perpetuate exclusion. It is especially relevant for women and girls, as child marriage, unwanted sexual activity, sexual abuse, unwanted pregnancies, sexually transmitted diseases, have repercussions for the rest of their lives, especially among the most disadvantaged. In the era of digitally produced and distributed images, where control and reversibility are impossible, physical, mental and sexual harm are massive on women and girls.
Irrelevance of consent has also been applied to persons unable to resist for example with an limited psychological conditions, such as having a mental conditions that prevent them from understanding or consenting to sexual intercourse or being under the influence of alcohol or psychoactive substances; when there are conditions of unequal power, which may be related to age, social role, among others and result in exploitation; and manifest superiority, when consent is mediated by the exploitation of conditions of emotional or economic dependence or protection.
Irrelevance of consent proves to be a powerful tool in international human rights law when examining the effect of patriarchy to subordinate women and children on individual and social contexts.
c. On Complex Trauma
Both the American Psychiatric Association and the World Health Organization define traumatic events as experiences involving actual or threatened death or serious injury or sexual violence or events that are extremely threatening or horrific in nature. PTSD is a condition in which traumatic memories are intrusively re-experienced in various ways, and accompanied by avoidance, negative thoughts and emotions, and hyperarousal and Complex PTSD (CPTSD) is a condition involving the same criteria, coupled with additional problems labelled as Difficulties with Self Organization (DSO), namely problems with affect dysregulation, negative self-concept, and relational disturbance. The recently published Guidelines for Working with Adults with Complex Trauma Histories of the American Psychological Association (2024) offers key insight to the complexity of an individual’s trauma history, to the degree to which traumatic events occur repeatedly, are of an interpersonal and intentional nature, transgress deeply held moral/ethical principles, and occur early and across multiple developmental stages, and even across generations.
In CPTSD, victims may have suffered repeated and extensive harm and betrayal or other types of inhumane treatment including coercive control at the hands of other people, including family members and peers, intimate partners, authority figures, designated helpers, and organizations and their agents. This may also take the form of human rights violations that dehumanize victims through means of emotional (e.g., antipathy and hatred, shaming, bullying, humiliation, harassment, discrimination, oppression, re-culturation), physical (e.g., assault, interpersonal violence, entrapment, imprisonment, pain, torture), and sexual violence (e.g., rape, child sexual abuse, incest, prostitution, human trafficking, the production of child sexual abuse materials).
A key characteristic of complex trauma, involves direct attack, harm, and/ or neglect and abandonment by caregivers or other adults who are responsible for responding to or protecting the victims—this may extend to organizations and cultures that are disbelieving of the victimized individuals and deny the occurrence of the traumatic circumstances and so are unresponsive or that support a safe haven for perpetrators, also referred to as “second injury”, above and beyond the original trauma.
Among the more frequent posttraumatic problems and harm, are: (a) emotional and psychophysiological arousal dysregulation alternating between hyper- and hypo-arousal; (b) negative sense of self including feeling unlovable, dirty or defiled, and less than human; (c) dissociative experiences from relatively mild inattention to flashbacks, time-distortion, voice hearing, depersonalization, and marked emotional numbing, identity confusion and amnesia; (d) psychosomatic symptoms; (e) addictive behaviour as a secondary coping mechanism for avoiding or suppressing trauma-related distress, other forms of risk-taking behaviour that may create vulnerabilities for further traumatization; and (f) self-harm and suicidality. Additionally, complex trauma patients may present ambivalent attachment to and traumatic bonding with perpetrators. Trauma history is also a risk factor in several mental health problems including depression and anxiety disorders, eating disorders, substance use and other addictive disorders, psychotic disorders, dissociative disorders, personality disorders and non-suicidal self-injury and suicidality.
With this knowledge of complex trauma, we can infer that most women and girls who have experienced sexual abuse and violence, will probably suffer of PTSD or CPTSD, among other mental health conditions. Difficulty to perceive themselves as victims, or perceive coercion, impairs them from escaping, and then, it might be too late. Most femicides are committed by male partners when women decide to leave abusive and violent relationships. Also, systematic and massive crimes such as rape, sexual harassment, sexual abuse, based on stereotypes, traditions and patriarchy, as well as massive and systematic, State sponsored forms of male violence against women and girls that naturalize commodification of women’s sexuality (such as trafficking, prostitution, pornography, surrogacy among others), end up producing second injury to victims.
In order to protect women and girls, we should move from legal models based on ‘consent’ where the onus is on the victim who has to prove she either “did not say yes” (did not agree) or “said no” (avoided, denied, fought, resisted, refused, stopped, combatted or protected herself), to one that sets the onus on the perpetrator initiating and causing the act which leads to suffering and harm, aided by circumstances of coercion.
d. On Circumstances of Coercion
The global system of sexist inequalities, rooted in deeply ingrained societal norms, creates an environment that enables and perpetuates male violence and discrimination against women and girls: From limited access to education and economic opportunities to unequal representation in political and decision-making spheres, these disparities do not only restrict women’s autonomy, but also foster an environment where violence against them is tolerated or overlooked. Societies construct, both culturally and legally, women and girls’ vulnerabilities and dependency. Male perpetrators of violence use these vulnerabilities to guarantee their impunity. It results from these observations that women, in order to survive, can be led to “consent” to violence, as they do not have another choice.
This appearance of consent can occur in contexts of coercive control, which is primarily committed by men against women, insofar as it builds on the vulnerability created by inequalities. Coercive control involves the systematic use of power and manipulation by one person to dominate and control another, as such it is personalised. It can manifest through various tactics, including emotional and psychological abuse, isolation from friends and family, financial control, and constant surveillance. Unlike isolated incidents of violence, coercive control is characterised by a pattern of ongoing, purposeful behaviour aimed at instilling fear and dependence. Victims often endure a gradual erosion of their autonomy, self-esteem, and freedom as the abusive partner seeks to maintain dominance. In the context of coercive control, genuine consent becomes unattainable and any semblance of it is tainted by the environmental power dynamics and manipulation.
Circumstances of coercion, may be analysed based on abuse of power and abuse of vulnerability on behalf of the perpetrator. Key indicators in the victim are female sex, age, ethnic, legal status or employment subordination, threats, psychological or physical pressure, presence of payment or promise of such, manipulation, coercion, intimidation, extortion, detention, denial, trauma and complex trauma, difficulty to self-protect, inability to reject, fear of violence, and being caught by surprise. Also, childhood experiences of adversity, previous sexual and domestic violence, belonging to traditionally discriminated groups, community or family instability, submission for protection, disability, early single motherhood, being in child protection programs or being in adoption, illiteracy or lack of education, lack of income and employment, irregular migration status, forced displacement, substance abuse and homelessness, previous mental health conditions, social and cultural naturalization, must be considered. For the case of industries that mask violence against women, payment, promise of or profit from the sexual violence is the most visible sign of coercion. Avoiding revictimization by erroneously focusing on the conduct of victims, is of utmost importance.
e. Recommendations for this report
- States must maintain irrelevance of consent for all male violence against women and girls, especially sexual violence and crimes
If the conduct to be analysed includes males and females, we can presume that sex of females is already a key discrimination factor whereas subordination of women to men, has not been solved, but deepened in new ways. It is key to focus on the conduct of the perpetrators, usually initiators of the action, by proving if there were circumstances of coercion and/or suffering or harm were produced to the victim.
- States must maintain irrelevance of consent through minimum ages of consent in 18 and measures to produce cultural transformation
States need to enforce protections to children and adolescents, maintaining minimum ages of consent in a holistic and interrelated way at 18, instead of decreasing this minimum. This protection obliges a focus on the conduct of those who abuse their power and vulnerability, especially considering that the current digital environment is not regulated and controlled and produces irreversible risks and dangers for life. Responsibilities of States include offering protective environments for children and adolescents to develop their full potential (health, education, safe leisure) and offering access and equal opportunities in adulthood. Normative measures should lead to cultural transformation of the unequal relationships between women and men, towards socialization in the freedom, dignity and worth of the human being.
- States must make industries and the demand responsible for sexual and reproductive violations of human rights of women and girls
When industries profit from sexual and reproductive violence of women and girls, States must support or take into account effective/timely evidence-based research on the patterns of harm and impacts on the physical, mental and sexual lives of women and girls. They must include new definitions and crimes that disproportionately affect women and girls, make industries responsible for the harms they produce, and prohibit the industry from functioning where these aspects exist. Effective preventive measures include criminalizing and re-educating the demand especially were disproportionately male. Examples of these industries are pornography and all the digitally based apps and options to commodify, access, use and abuse women and girls; prostitution and all the types of business models that do the same, and surrogacy which exploits women’s reproductive capacity. States must also make industries that profit from promoting stereotyped roles and behaviours that disadvantage women and girls – beauty, music, cinema, and other entertainment industries-, responsible for their grooming, recruiting, naturalizing and facilitating violence against women and girls.
- States must promote substantive equality for women and girls
Circumstances of coercion and proof of suffering and harm are the evidence of male violence against women and girls, and the ineffective use of consent to protect and prevent it. True and meaningful consent should be based on equality (economic, social, sex, age) in relationships, mutual desire and reciprocity, absence of any form of coercion or commodification, physical and mental safety and real alternatives from which to choose. States can promote a simple test on substantive equality among justice operators and authorities who create and implement public policies and structural changes for women and girls. Substantive equality is equality of results for women: 1. It eliminates direct and indirect discrimination against women, 2. It repeals unjust laws and policies, 3. It corrects historical discrimination and unequal power, 4. It meets biologically related needs of women, 5. It protects the status of maternity, 6. It eliminates stereotypes and violence against women, 7. It provides equal opportunities and ensures full development of women’s potential.
