Should the EU make the “Yes means yes” principle the directive for sexual criminal law? Two taz authors discuss the issue.
To get right to the point: no one has to sign a contract or have a voice recorder in their pocket to prove that the (usually spontaneous) sex was actually consensual. Neither with the legal formulation “Yes means yes” nor with “No means no”. This has to be mentioned here because there are very strange ideas circulating about what people who have sex with each other should pay attention to in each version. It would be absurd, it won't happen.
However, it makes a difference under what premise the crimes of sexual violence and rape are negotiated in society. While the phrase “No means no” establishes a clear rejection, “Yes means yes” goes further: this formulation presupposes clear consent to have sexual relations. This already applies in Sweden and Spain.
In this sense, it is incomprehensible that the EU has not been able to reach an agreement on the “yes means yes” regulation in the sexual criminal legislation proposed by its Parliament. The principle that EU states should regulate criminal sexual law on their own – such as the right to vote or education laws – has no place here. The physical integrity of every human being and protection against rape and sexual violence are a universal human right that must be treated equally everywhere.
Sweden, which was the first EU country to introduce “Yes means Yes” in 2018, faced a lot of ridicule for it. But in no other country in the European Union did the 2021 EU statistics count so many perpetrators convicted of rape. The Swedes are sure: this is because “yes means yes”, because certain actions that were not before are now considered violations.
And in Germany? Here only 10 percent of victims report the crime. Only 8 percent of these reported perpetrators are convicted. Simone Schmollack
It is not a scandal that the EU does not regulate the criminalization of rape uniformly, because it simply does not have the authority to do so.
The EU historically emerged as a single market. It is not a state. Therefore, the EU only has powers when Member States expressly grant them to it in the EU treaties. In principle, the EU is not responsible for criminal law, as it is considered a particularly sensitive matter that should be reserved for national legislators.
An exception only applies to a few areas of crime with a “cross-border dimension”. Here, among other things, terrorism, arms trafficking and “human trafficking and sexual exploitation” are mentioned. It is obvious that what is meant here is the exploitation of prostitutes and not the rape of one's wife, an acquaintance or a passerby. Whoever points out this limit of responsibility, like the Minister of Justice, Marco Buschmann, is not a misogynist.
But even if the EU ignored its limits on competence, the proposed EU-wide definition of rape would not represent much progress, at least for Germany. We have applied the “no means no” principle since 2016. If a person clearly does not want sex, no one can ignore it. A nod is enough.
In contrast, there is little to say against requiring obvious consent; then a nod or a smile would also be considered consent. However, the problem of provability persists when a claim is contradicted by a statement. The absence of a head nod is as difficult to demonstrate as a head nod. In the end, in controversial cases it always depends on the credibility of the statements.
But anyone who is convinced that “yes simply means yes” would be a breakthrough should convince the Bundestag to implement another reform. The lack of EU requirements leaves this legislative freedom to national parliaments. christian rath