The law should describe criminal acts as closely as possible – if the logic of rape is consent-based, so should the legislation

Researcher Otava Piha argues that if rape is about lack of consent, the law must say so—to better protect the rights of both victims and suspects.

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A young woman was sitting in a hot tub in the lap of a man she had been flirting with, with other people also sitting around, chatting. Suddenly she felt the man’s hand finding its way to her crotch. She didn’t immediately know what to do – she did not want to draw the others’ attention to the situation, because it would have been embarrassing. He inserted his fingers in her. She then pulled away and left the hot tub. The man was not convicted of any crime.

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A 16-year-old was partying in a private apartment with a small group of people. Two young men started kissing and fondling the 16-year-old, who, at the instruction of the men, got undressed. Both men had sexual intercourse with the 16-year-old. The men were acquitted, because according to the District Court, “The fact that a sexual partner says ‘no, I don’t want to’ before sexual intercourse or between intercourses, is not always a sufficient signal to the other person that consent and willingness to continue sex is not present.”

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“The victim has not said that the suspect would have prevented her from leaving the bed. Rather, this has been a question of tiredness and nausea. I interpret that the victim would not have been in such a state of helplessness, resulting from fear or some other reason, as to be unable to prevent the sexual intercourse by for example leaving the bed.”
Prosecutor’s decision to close a case

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The above examples are from cases that I have come across in my research into rape and sexual abuse in Finland before Finland moved to a consent-based rape law in 2023. I have modified some details to make the parties unrecognisable. In each case, the court or the prosecutor considered that the definition of rape was not fulfilled.

The old Finnish rape definition was similar to the current Estonian one: rape was coercion into sexual intercourse using violence or a threat, or by abusing the victim’s helpless state. Until 2018, the Ministry of Justice believed that this coercion-based legislation in practice covered non-consensual sexual intercourse, and that therefore there was no need to change the legislation. However, research I did at Amnesty Finland showed that this belief was misguided. Three problems became evident:

1. Not all types of cases of non-consent were covered by the coercion-based model.
2. Some prosecutors and judges put more emphasis on non-consent than others and therefore interpretations of the law were not uniform, and
3. The prosecutors and judges who looked for non-consent sometimes had to ‘package’ the case in the language of violence or helplessness in such a way that the interpretation of the law seemed to be quite far from the ordinary understanding of the wording of the law.

These three problems are connected, and I argue that the first and the third problem were alleviated most by the move to a consent-based wording of the law.

Broadly speaking, the old Finnish definition was similar to the current Estonian definition, where rape is defined as sexual intercourse with a person against their will by using force or taking advantage of a situation in which the person is not capable of initiating resistance or comprehending the situation.

In Estonia, ‘force’ includes threats (§ 120) and physical abuse (§ 121), but these are interpreted more restrictively than in Finland. The (physical) inability to defend oneself and (mental) inability to comprehend the situation can together be characterised as ‘helplessness’. However, the Finnish definition of helplessness was more detailed than the Estonian one, so the Estonian definition theoretically covers a slightly broader range of cases. For example, in Estonia, the idea of helplessness is not restricted by a list of conditions from which the helplessness must result. Nevertheless, considering the similarities as well as the open-endedness of the Estonian definition, it is likely that at least some of the problems are shared.

Problem 1: Cases of non-consent not covered – violating the protection of sexual self-determination

According to my research, several types of cases where consent would be an issue could not consistently be construed as involving violence, a threat or a helpless state:

• The victim was passive or semi-conscious, perhaps half-asleep, drunk or had frozen with fright – in such cases, the perpetrator did not need to resort to violence, but neither was the victim in a fully unconscious or otherwise in a helpless state.
• The perpetrator ignored the fact the victim said ‘no’ or asked them to leave, but the victim did not resist physically – so that again, the perpetrator did not need to resort to violence.
• Penetration happened so suddenly that the victim did not have a chance to react.
• The victim withdrew consent during intercourse, but the perpetrator did not stop.
• The perpetrator removed the condom without the victim’s knowledge, the perpetrator otherwise lied about factors relevant to the victim’s decision to have sex, or the perpetrator performed a different type of sexual intercourse from what the victim had agreed to.
• The victim acquiesced to sex under duress that did not amount to threats, like pressuring and other emotional manipulation, or the perpetrator was a figure of authority and abused this position of power (though some such cases were criminalised as sexual abuse).

In many such cases, the police did not investigate, the prosecutor did not press charges, or the courts acquitted because they did not think the elements of rape were fulfilled. However, it is difficult to make a categorical list, because there was also a lot of variation in legal interpretation. That leads us to the second problem.

Problem 2: Uneven interpretation – violating legal certainty

Different police, prosecutors and judges interpreted the rape provision differently. For example, ‘violence’ covered a broad range of actions: not only hitting, strangling, and the use of weapons, but also the milder use of physical force, like gripping someone’s arms, pushing someone on the bed, or holding them down with one’s bodyweight. Sometimes even very mild actions, like gently pushing on someone’s shoulders or guiding someone’s hand could be construed as violence. Thus, some cases where the victim was passive or said ‘no’ were treated as rape, because there was a moment that could be interpreted as the use of violence.

However, I named Amnesty’s research report ‘Fighting the Lottery’, because the interpretation of the law seemed to depend on who was doing the interpretation: sometimes mild physical violence was enough to constitute violence, but for some police, prosecutors and judges, the use of physical force had to be stronger to fulfil the requirements of the offence. Likewise, sometimes a passive victim was considered to be in a ‘state of helplessness’ due to strong intoxication, but there was a lot of variation in how strong intoxication had to be to constitute a ‘helpless state’.

Legal decision-makers often do not see this variation, because they do not see the cases that have been closed at an earlier stage in the process (e.g. judges do not see the cases that the police do not investigate). Often those decision-makers with a broader interpretation of the law first evaluated the presence or absence of consent, whereas those with a stricter interpretation directly evaluated the presence or absence of violence, threats or a helpless state and adopted a more restricted view of these concepts. Some decision-makers even stated outright that non-consent does not always go hand-in-hand with violence, threats or helplessness.

One prosecutor wrote in their decision not to press charges: “According to Finnish legislation, having intercourse against the other person’s refusal does not fulfil the material elements of rape, unless it is associated with the elements explained above [violence, threats or helplessness].” In another case, the District Court wrote: “Even according to her own statement, the victim had not resisted in the situation but rather she had frozen and pretended to sleep… Such a situation does not constitute a crime even if the victim has been entirely passive and basically unwilling to have sexual intercourse.”

The principle of legal certainty demands that like cases should be treated alike: the law or its interpretation should not vary in similar cases. When some police, prosecutors and judges interpreted the concepts of violence or helplessness expansively and others restrictively, the interpretation of the law became uneven, violating the principle of legal certainty.

Problem 3: Packaging non-consent as coercion – violating the legality principle

In criminal justice, the legality principle is especially important. According to this principle, criminal punishment can only be handed down for acts that are clearly prohibited by law. Consequently, the text of the criminal code must be interpreted strictly rather than expansively. As far as possible, words in the criminal code should be given their everyday meaning, so that the ordinary person can understand the law correctly and abide by it. This legal principle reflects an important value: the wording of the criminal law must describe the prohibited conduct as closely as possible.

Under the old Finnish law, the interpretation of ‘violence’ did not fulfil this requirement. This was because decision-makers with an expansive interpretation first evaluated whether the victim consented and then ‘packaged’ the case in the language of coercion. The same conduct, like being on top of someone, pushing on their shoulders or guiding them to the bed, could be characterised as ‘violence’ when the person did not consent, but as part of normal sexual interaction when they consented. In legal terms, consent formed a central element of the crime of rape, without being explicitly included in the law. This was problematic from the point of view of the legality principle. If the logic of legal interpretation is consent-based, the law should also be consent-based.

An expansive interpretation of ‘helplessness’ would face similar difficulties. Could the woman in the hot tub be described as mentally or physically ‘helpless’, except in hindsight? There was nothing helpless about her mental capacity as such, and when the man penetrated her, she quickly ‘defended’ herself by leaving the situation. From an objective point of view, it seems like she had the capability to defend herself. A ‘freezing’ reaction, which renders someone defenceless, is difficult to objectively distinguish from other types of passivity. Perhaps the suddenness of the situation made her helpless? If so, how many seconds of thinking time makes a person no longer helpless?

This is the more profound problem with the ‘helplessness’ approach: let’s say the man proceeded slowly, so that surprise could not be said to make the woman unable to defend herself – should the responsibility be on the woman to escape, or should we require people to ensure they have clear enough consent before proceeding with sexual interaction? Logic centred on helplessness blames the victim for not preventing the rape – like the prosecutor quoted at the beginning – focussing on the victim’s capability and not the perpetrator’s actions. I do not think most people would characterise the hot tub situation in terms of helplessness, but would immediately recognise that the man had not ensured consent, and that it would be unreasonable to ask her to indicate non-consent, especially with other people present.

The legality principle also means that there is a resistance to changing the interpretation of a law without changing its wording. It is, of course, possible that the interpretation of a law adapts to changing circumstances – this is what happened with the interpretation of ‘violence’ in Finland – but changing the interpretation in this way to the detriment of defendants is problematic. Therefore, the legality principle makes restrictive attitudes to legal interpretation part of the law, and therefore defendants’ rights are better protected if attitudinal change is accompanied by corresponding changes in the wording of the law.

Would a consent-based law solve these problems?

It would be unrealistic to expect a consent-based law to solve all these problems, but it would solve some. This would also depend on which formulation of a consent-based definition of rape is chosen, how well the accompanying explanatory memorandum is written and how much training for the judicial system are offered. The two problems that a consent-based legislation should alleviate the most are the inadequacy of the protection for sexual autonomy (Problem 1) and the violation of the legality principle (Problem 3).

A consent-based law would bring some types of sexual intercourse more clearly within the remit of the rape definition. But even here there are different options for drawing the lines: for example, the Finnish legislator decided not to criminalise pressuring into sex unless the manipulation is exceptionally strong, nor lying about such things as marital status. However, lying about contraception is now criminalised, because it is directly related to the sexual intercourse. A consent-based law is not a magic wand for protecting sexual self-determination – but it is necessary to ensure that cases do not slip through the cracks due to deficiencies in the legal definition.

A new law always brings with it a new grey area at its borders. After a legal amendment, interpretation will likely be uneven, and so Problem 2 is likely to remain a problem under the consent-based legislation, especially at the beginning. Evaluating consent is not always easy in practice – but neither is the evaluation of something like helplessness. The more diligently the new law is prepared and the more example cases considered, the smaller the grey area is likely to be. To eliminate grey areas, it is important to ask and answer: what could a case look like that feels wrong to many, but not so wrong that it should be labelled rape and punished with a prison sentence.

A new affirmative consent law

The amended law in Finland is based on affirmative consent: the ‘yes means yes’ model. Willingness for sex must be actively and voluntarily expressed, free from violence, threats, abuse of power or the exploitation of mental states where the victim cannot decide freely.

Under the old Finnish law, cases of non-consent could fall through the cracks, even when the defendant admitted that consent was lacking. One prosecutor wrote as they closed the case: “The suspect says that the victim said ‘no’ once, but after that she had not resisted the sexual intercourse.” In another case, the District Court concluded: “The statements of the accused and the victim are congruent about the victim not being active in the latter instance of intercourse, but she also did not express her reluctance in any way. The victim had not refused the accused or asked him to stop the latter sexual intercourse.

These facts support the perception that the victim has not been in such a helpless state that the accused would have been aware of it or could have perceived it or inferred it from the circumstances.” Under the affirmative consent definition, the defendants’ old favourite defence of “She did not indicate that she didn’t want to, so I couldn’t know” will no longer fly in court.

It is clear that the presumption of innocence must and will still protect the defendant under consent-based legislation. It is the prosecutor’s job to prove that the victim did not consent. In many cases, this will still be impossible, just like proving mild violence, verbal threats or a helpless state after the fact.

The new Finnish rape definition is not a perfect definition nor a perfect solution, but it seals some of the more glaring cracks in the protection of sexual self-determination and makes it clearer for everyone what the logic is: sex without consent is rape.