27th November 2024

Legislating on sexual violence with a consent-based approach in Latin America and the Caribbean

End sexual violence Latin America and the Caribbean

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Summary
What’s inside the guide?
Who’s it for?
Key recommendations

The Guide for Legislating on Sexual Violence with a Consent-Based Approach, a publication by Equality Now and ParlAméricas, highlights the need to align legal definitions of sexual violence with international standards by centring on the lack of voluntary and free consent, rather than force or resistance, and by eliminating other discriminatory provisions. It underscores how outdated, force-based laws perpetuate harmful myths, deter reporting, and fail to protect survivors, particularly in cases involving power imbalances and/or vulnerability.

What’s inside the guide?

The guide provides detailed analysis and in-depth legislative guidance and recommendations, including adding consent as the central element of the definition of crimes of sexual violence, recognising contexts and coercive circumstances where consent can neither be freely given nor inferred, including situations of power imbalance, dependency, or vulnerability. It calls for the elimination of estupro laws or similar provisions that trivialise the rape of adolescents, as well as the abolition of marital rape exemptions and the removal of statutes of limitations for sexual violence crimes. The brief also highlights the importance of close-in-age provisions to prevent the criminalisation of consensual, non-exploitative sexual activity between adolescent peers and advocates for trauma-informed approaches within justice systems to provide better support for survivors.

It is based on Equality Now’s fact sheet Consent-Based Rape Definitions (2021) and its publication Failure to Protect: How Discriminatory Sexual Violence Laws and Practices are Hurting Women, Girls, and Adolescents in the Americas (2021), which includes an Annex of applicable laws on sexual violence in the Americas and Caribbean region.

Who’s it for?

All legislators, including those who are part of ParlAmericas, including representatives from North America and the Caribbean.
Advisors to the parliamentarians.
The technical teams of the gender technical units of each legislative assembly.

Key recommendations

Base legal definitions of rape and sexual violence on the absence of voluntary and free consent, rather than on force or resistance.
Ensure that rape definitions cover all forms of unwanted penetration of a sexual nature, regardless of the object or body part used.
Recognise contexts and coercive circumstances where consent can neither be freely given nor inferred, including situations of power imbalance, dependency, or vulnerability.
Eliminate estupro or similar provisions that trivialise the rape of adolescents.
Ensure laws address exploitation in relationships with power imbalances, such as teacher-student or employer-employee dynamics.
Ensure penalties for sexual violence reflect the gravity of the acts.
Include survivors and civil society in the design of policies and practices to address rape.

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