In 2018, Iceland’s parliament passed an affirmative sexual consent law which states that sex without free and clearly communicated consent is rape. Elise Rohtmets from Feministeerium interviewed Þorbjörg Gunnlaugsdóttir, a former prosecutor and current Member of Parliament, on how the affirmative consent law was passed and how it has in her view influenced the criminal justice system and society in general.
Þorbjörg, you wrote your Master’s Thesis on the consent law and worked together on the bill with Jón Steindór Valdimarsson. How far-reaching were the changes that had to be made in the justice system, i.e. was the change only in the definition of rape, or was anything else changed?
Only the definition of rape in the penal code was changed and there were no proposals to change the procedure. We also had a sister bill on its implementation, specifically about education programmes in schools, courts, police, etc. Our party [Jón Steindór and Þorbjörg are both members of Iceland’s Liberal Reform Party] was part of the opposition when we proposed the bill and as its implementation would result in costs, the sister bill did not pass back in 2018. We have proposed it again, but have not been successful since we are still in opposition.
The consent law is not a magical solution to all our problems.
So there were neither any updated guidelines nor training for the judicial staff other than the mandatory explanatory memorandum that accompanies any bill. What changes, then, did the reform bring about in how cases were handled and brought to court?
Unfortunately, the sister bill was not passed. However, the Ministry of Justice could of course have taken any such steps. I know that within the prosecution there were meetings to discuss the changes after the law passed. I don’t know about the Courts and the police, but I would suspect they did have their meetings regarding these changes as well. As for the changes themselves, I must first state that the consent law is not a magical solution to all our problems and it has not radically changed how rape cases are handled in Iceland, since there was no widespread discussion among the judiciary on the nuances on how to use this tool. However, over the years we have seen different and more “difficult” rape cases brought to the police while the number of convictions remains the same. 20 years ago these “difficult” cases would have been hopeless. This, to me, indicates a positive change.
On one hand, this change can be attributed to the change in society: women now have more confidence in themselves, even if not in the system. They want to go to the police, tell their story and let the system deal with it. If the case is not dropped, it still takes a long time to get a final verdict. In Iceland, a rape case can take around 3 years to go through the system. It would not be honest to say that with this law everything has changed, but a clear positive side of the consent law is that it opens up new possibilities in educational reform and wider cultural change. The affirmative consent law puts the emphasis on a person to have the responsibility of being sure that their sexual advances are wanted by their partner, instead of dismissing their partner’s signals (or the lack of them) and when the damage is done, simply state “they didn’t say no”.
The new definition draws focus on sexual autonomy where the focus needs to be.
So you are saying that when it comes to the consent law, public discussion and educating the justice system are very important?
I strongly agree that debate is important and lack of implementation matters, meaning that the missing sister act in Iceland mattered. Altering the penal code’s definition of rape without proper discussion with the people who are supposed to work with it, like judges, etc., weakens the change. However, I am a strong believer that even without proper discussion the new definition draws focus on sexual autonomy where the focus needs to be.
Speaking of the new definition, how are rape and consent defined in Icelandic law?
The old definition of rape was based on coercion where force or helplessness used by the perpetrator needed to be proved for a sexual act to count as rape. Now the definition is consent-based where consent needs to be freely expressed and is defined similarly to Sweden.
Was there resistance towards the consent law either from politicians, the media, or the judicial system?
The Ministry of Justice was skeptical at first, but it’s in their DNA to be skeptical regarding criminal law. I say that one important factor of criminal law is stability, but that is certainly not the only one. There was no active official resistance by the justice system, only informal critique. On the other hand, it was quite remarkable that the bill was initiated by the opposition and it passed in the parliament unanimously. That signals strong support.
Let’s talk about some practical changes in how rape cases are handled and assessed. You mentioned that over the years we see different and more “difficult” rape cases brought to court. Can you give us an example?
Here, I would say that the impact of the change has been positive. The change in definition puts the focus on consent, rather than simply the issue of saying no. Investigation would look into contacts before and after, “the whole story”. We still look into violence and drugging, but also power differences like age difference and whether the perpetrator took the victim to an isolated area, but with the word “consent” in the definition you switch the focus in questioning. Instead of asking the suspect about these “criteria” [using violence or the victim’s helpless state] and how they forced themself on the victim, you ask “What led you to believe that they wanted this?” While the burden of proof remains with the prosecution, there is a switch in how we question the suspect.
The rape cases in Iceland are usually not physically very violent, often the offender and victim know each other. When people are victims, they are stuck in a scenario where they know they have no chance of fighting. It will be either rape or rape AND violence. Or it is the common reaction of “freezing”. So in the investigation, you ask how could the victim have said yes, if there was no communication. As a former prosecutor, I definitely think it helps, it switches the conversation and the attitude of the questioning during the investigation and prosecution. Then there is the separate issue of the intent to rape and these questions can become difficult to answer.
You mentioned the problem of proving intent. Has there been any talk of adding negligent rape to the penal code like in Sweden?
It has not been discussed broadly in Iceland. In some smaller feminist circles, yes, but not in parliament.
It is quite remarkable that the bill was initiated by the opposition and it passed in the parliament unanimously.
But coming back to examples of practical changes and “difficult cases”…
Reported cases used to be stereotypical cases that even the most conservative people would understand. Now we have rape cases that are more about the unsaid, the context, the totality of circumstances. You don’t need the brutality of circumstances anymore. In Iceland, you would not see in written court decisions that “the victim could or could not fight the perpetrator”. One result of the consent law is that our old article for helplessness has grown and become more powerful, e.g. the age difference between the victim and the perpetrator that creates a power difference is now an indication of helplessness on the part of the victim.
Rape cases are by nature difficult to try in court. Usually, there is no one there to witness the act. Like when a young woman goes to a party with a man she knows. There are a lot of people in the other room and he asks her to the bathroom where he rapes her. The whole context matters. You look into what happened before and what happened after, to estimate what happened between them when they were alone. Often, there are no visible signs of force. You can look at how others saw her, like whether she exited the bathroom crying, or her doctor described that she was depressed, or for example, there are apologetic text messages by the perpetrator, etc. With the old definition there needed to be indications of force, now we look at signs that indicate whether sex was without consent.
In Estonia, a specific question has been put forward about consent and money, specifically where is the line where money erodes the notion of freely given consent. I can give a non-judicial answer that money does not automatically erode freely given consent and should not be seen first and foremost as a tool of coercion when the person consenting is considered autonomous. We can assess a person’s autonomy by looking at other criteria, such as the seller’s motivation, their capacity to understand their circumstances, and the nature of the transaction itself – in short, context matters. But I am interested if you can give me a more judicial answer about how the courts in Iceland treat sex for money in terms of freely given consent.
This has not turned out to be problematic in Iceland in any regard. Since you have not criminalized buying sex, I do not see a problem for Estonia either. Even in Sweden where buying sex is criminalized and there is a negligent rape law in place, people do not get convicted of rape just because they paid for sex. When these cases come up, they are about trafficking, not money. For example, there was a case where a sex buyer reviewed online afterward that “she did not seem happy, as she was trafficked”, and the buyer was convicted of negligent rape. In that specific case, it was against the will of the victim, because she was trafficked (it was not her choice to provide the service). The bottom line is that she did not want it and he still did it.
Any recommendations for people who wish the consent law to be implemented in Estonia?
Laws are empty without the people using them, so you need more than a change in the wording of the law. The law is only one part of many in the battle against rape. An important goal should be to reduce the number of rapes. The success of legal amendments also depends on how the prosecution and the courts interpret the law and therefore it is very important to put careful emphasis on the explanatory memorandum that accompanies the bill [explanatory memorandums describe the will of the lawmaker and how the law should be interpreted]. How society affects the law and how the law affects the views of society always forms a circle. For a positive outcome within the justice system and in society, education is key.