In recent years, no area of criminal law has received more public attention than the laws on sexual violence. Discussions about the need for reforms have exhibited a mobilizing force extending far beyond the legal community. From a legal perspective, these discussions concern intricate normative questions regarding the content of the right to sexual autonomy and the suitability of the consent paradigm to establish the limitations of its protection under criminal law. At the same time, they ultimately concern the question of gender-related societal power hierarchies. Acknowledging these broader socio-political dimensions allows us to comprehend the highly contentious manner in which this debate is often conducted. This Special Issue attempts to analyze from a transnational perspective both the fundamental legal and socio-political questions in the current discussions on sexual violence and criminal justice. A recurring theme is the question as to whether criminal law can be used not only as an instrument of repressive social control, but also as a means of power-critical – even emancipatory – social policy.

During the 20th century, society’s view on sexualities has undergone a severe paradigm shift. While moving away from ideas of decency and bawdiness to evaluate legitimate sexuality, concepts of autonomy and consent gained importance. This transformation is also challenging the law.1 With the broad acceptance of various forms of sexual behavior and sexual orientation, legal regulation based on morality and ethics is outdated. Recent debates on law and sexualities focus on sexual autonomy and its conditions. This is shown especially by the legal debate on sexual violence and criminal law.2 But the right to sexual autonomy does not only require adequate protection against sexual violence. As a human right, it obliges State Parties to Human Rights Treaties such as the European Convention on Human Rights and the Convention on the Elimination of Discrimination against Women to respect, protect, and fulfill sexual autonomy. This includes the guarantee of freedom from sexual violence, coercion and discrimination, as well as control over one’s own body and over the involvement in sexual interactions with others. In order to ensure the different components of sexual autonomy, sexual education and reliable access to information and medical services are necessary. This paper presents an approach concerning the multifaceted dimensions of sexual autonomy through a human rights lens.

While "no means no" considers sex as consensual until someone says no, "yes means yes" defines sex only then as consensual when all parties have explicitly agreed. Consent is thus positively determined by the presence of a yes and no longer negatively determined by the absence of a no. "Yes means yes" thus not only sets the limit as to when sex becomes sexual violence, it also tells us how morally "correct" sex should look like. In the first part I will give an insight into debates about affirmative consent in the US and Germany. In the following, I will work out how affirmative consent misjudges the subjectifying functioning of sexual power relations. I will show that the understanding of affirmative consent is based on a gendered giver-receiver grammar of consent, which stabilizes heteronormative notions of female sexuality as passive and male sexuality as active. Based on the results of conversational analytical studies on sexual communication, I will argue that the politics of affirmative consent underestimates the internalization of heteronormative discourses in sexual subjects.

Many countries are in the process of replacing outdated sex offense regulations with laws that accurately correspond to late modern ideas about gender equality, sexual self-determination, and consensual sex. One example is Sweden, where a law that defines rape based on a criterion of nonvoluntary participation entered into force in 2018. This article analyzes the representation of rape in the new law and legal discourse in Sweden, and shows that rape is represented as a matter of choice and communication in sexual situations. Further, the new rape law is coupled to an emerging problem within such disparate spheres as public health, social media campaigns, sexual education, and gender studies; namely, the problem of sexual communication and gray zones in sexual encounters. To understand this new representation of rape, further exploration is suggested both into the effects of sexual violence being framed as a matter of individual choice, consent, and communication in late modernity and into the role of criminal law in the era of thin normativity. The article concludes that the new rape law sends a clear message about what sex should be—namely, something voluntary—but does not accurately describe the crime and the conduct that deserves criminal censure.

All jurisdictions assume a concept of an act of a sexual nature by regulating sex crimes. Until the sex revolution and feminist movements for equality in sexual relations, criminal law was mostly concerned with specific types of sexual acts, particularly non-marital sexual intercourse. With the paradigm shift of recent years, criminalization tends to embrace all acts of a sexual nature with another person without her valid consent. Whether the law contains a definition of a sexual act or not, borderline cases show that neither merely objective criteria nor purely subjective elements can serve as basis for the description of the conduct under prohibition. Our Article tries to overcome this deficit in the criminal law theory. Sexual acts should not be understood through the metaphor of a “picture,” as German legal scholars believe, but with the metaphor of a script played out by an actor as sexual theorists put it.

Due to the reconceptualization of rape and other sexual offenses as violations of one's sexual autonomy, consent has replaced the element of force as the focal point of rape law. This shift to a “consent model” of rape has prompted much discussion about the scope of sexual autonomy and the problem of “rape by deception” in legal scholarship. Most theorists of consent argue that certain forms of deception invalidate any token of consent in the same way as forcible sexual contact. However, there is also a widely shared concern that criminalizing sex-by-deception poses serious problems in terms of drawing the line between deceptions that violate sexual autonomy and deceptions that do not. This Article offers an account of principles that should be considered when examining legal cases related to sex-by-deception. These principles are examined and articulated in a way that strikes a balance between responsibility, autonomy, and rights such as the right to privacy.

The emergence of new interactions, notably those online, has led to the parallel development of criminal behaviors—not all of which are captured by the current legal framework. This article addresses the challenge posed to criminal law by the emergence of technologically facilitated violence, specifically its sexualized online forms. In particular, it argues for cautious yet specific criminalization of violent behaviors online whilst considering the broader criminal liabilities of all actors involved in the facilitation and perpetration of digital sexual violence. This article draws upon national—contentious—examples of attempts to regulate disruptive sexual violence perpetrated through digital means, with particular attention given to provisions in the UK, Germany, and France.

Whether in Germany or abroad, victims of sexual violence typically played only a minor part in criminal proceedings, serving primarily as witnesses due to the widespread public and objective nature of the trial.1 This led to victim disempowerment and a paternalistic method of State protection of victims.2 During the last decades, this perception underwent major changes in European legal systems, owing to a rising awareness of victim’s needs, especially in cases of sexual violence.3 International and European conventions and treaties played a major role4 by establishing an international regulatory framework. To implement those international standards, domestic criminal laws have changed significantly on both substantive and procedural levels. Today, Germany’s criminal procedure law contains many mechanisms for protecting victims. Nevertheless, in cases of sexual violence, the implementation of these mechanisms in criminal proceedings leaves much to desire due to the affect of gender stereotypes and rape myths. This Article argues that in these cases the law in action ultimately fails to meet international requirements.

The “no means no” model has been applied in Germany since November 10, 2016. Its introduction has considerably extended the scope of criminalized forms of sexual interaction. This Article examines the criminal policy discourse that gave rise to it and the question of whether the new provisions have led to the changes in the practices of criminal prosecution proclaimed in advance. The results will be critically assessed. The new legislation relating to sexual offenses was also shaped on the initiative of groups perceiving themselves as emancipatory, and in the understanding of these groups, the “no means no” provision acts as “progressive” criminalization. Yet, aside from the fact that the associated expectations have hardly been met as of yet, this movement would have to resolve an essential question: Is penal law compatible with a “progressive” social policy they claim to stand for at all, and if so, what conditions does it have to meet?

The article describes the #MeToo-movement in the United States and Germany and discusses the merits and problems of this social phenomenon. It highlights the fact that some features of #MeToo (blaming and sanctioning wrongdoers) resemble those of criminal punishment and thus require careful justification. In the final part, the author examines the impact of the #MeToo-movement on criminal law reform.

The controversial trial of five men accused of gang-raping a young woman during the 2016 San Fermín festival and their conviction not for rape, but for a lesser crime of sexual abuse in 2018, known as La Manada (the Wolf-Pack) case, brought the Spanish law under intense public scrutiny. The case led to an outpouring of protests across the country and called for the urgent reform of rape laws, which then led to the drafting of new provisions to address the outcry. To set the analysis in the context of feminist activism, this Article is organized around the hashtags used during the protests. Accordingly, this Article examines three aspects of considerable debate: Namely the distinction between sexual abuse and rape (“it’s not abuse, it’s rape!”), the murky legal understanding of consent (“only yes is yes”), and the introduction of the gender perspective in the legal system (“sister, I believe you”). By addressing these issues, this Article demonstrates the pervasive influence of feminism over recent Spanish law-making, and the continued resistance which such efforts meet. This Article concludes by scrutinizing this effect and examining the conditions under which a civil society network may succeed in challenging socially outdated legal provisions.

The aftermath of protests triggered by a brutal gang-rape in New Delhi in December 2012 was archetypal of the broader women’s movement in post-independence India. The primary demands of the social movement to address sexual violence against women were wrapped in the language of rights-based reforms in criminal law provisions. The state responded to the social mobilization in the form of criminal law amendments, while blindsiding key recommendations from feminist groups. This Article revisits pertinent Law Commission reports, subsequent criminal law reforms, and case law on sexual violence against women to analyze how the negotiations between the women’s movement and the State on the seemingly irreconcilable demands of sexual autonomy and punishment for sexual violence. We take account of the intended and unintended consequences of this reliance on criminal law as one of the primary tools in the arsenal of Indian women’s movements. We argue that engagement on the plane of criminal law to address sexual violence against women is a case of limited imagination at best and counter-productive at its worst. This approach of the movement and feminist groups is to react to the “crime” of sexual violence after the fact, leading to distraction from much warranted structural responses. We argue that this approach makes it harder to conceptualize and implement more forward-looking relational models of responsibility that are necessary to address the structural injustice of systemic sexual violence against women.

The adoption of the Rome Statute of the International Criminal Court (ICC) was widely lauded as a success with regard to the recognition and potential prosecution of conflict-related sexual violence. More than twenty years later, however, many observers are disillusioned with the ICC’s dire track record concerning the implementation of its progressive legal framework. In many cases, the Court and particularly its Prosecutor have been criticized for failing to adequately address and prioritize sexual violence, culminating in only a single final conviction since 2002. Nevertheless, the ICC’s emerging practice shows progress with regard to the conceptual understanding of conflict-related sexual violence and the realization of the Statute’s full potential in ensuring accountability for sexual crimes. Taking into account the evolving jurisprudence, the Article explores the persisting challenges and the perceived gap between aspirations and reality regarding the prosecution of sexual violence at the ICC.

This Article is based on the professional experiences of the authors working as lawyers and activists towards accountability for sexualized and gender-based crimes under international law. It provides a critical evaluation of universal jurisdiction cases in Germany addressing conflict-related sexualized violence. In particular, the article looks deeper into the Office of the German Federal Prosecutor General of the Federal Court of Justice’s (GBA) approach to gender while taking note of the barriers in the way of investigating and adjudicating crimes under international law. Both authors have been following universal jurisdiction developments in Germany closely, particularly in relation to the investigation and prosecution of sexual and gender-based crimes. With regard to the proceedings against two high-rank representatives of the armed rebel group Forces Démocratiques de liberation du Rwanda (FDLR), the findings in this article are informed by trial monitoring reports organized and conducted by a group of organisations and institutions, namely Medica Mondiale, the European Center for Constitutional and Human Rights (ECCHR), and the Hamburger Institut für Sozialforschung. In light of the fact that German trial records are absent of publicly accessible records of what was said in the court room, the consortium of groups co-monitored the FLDR trial.