Evidence of resistance is not required. The legislation should make clear that evidence of resistance to the assault, such as physical injuries to the body, is not necessary to prove that sexual activity took place without consent. It should also make clear that consent cannot be inferred from a complainant’s silence or submission during the assault.
Requiring proof of resistance as evidence that there was no consent is based on discriminatory and erroneous myths, including that ‘real rape’ always involves force, victim/survivors always try to fight off their attacker and that women lie about rape and other sexual assaults. There are many circumstances in which genuine consent cannot be given and there are many reasons why a victim/survivor may not physically resist their attacker or might appear to submit to sexual assault even in the absence of the use or threat of force.
Some Commonwealth countries have made clear in their law that evidence of resistance by the victim/survivor is not required and that submission or silence is not consent. This approach fully meets this indicator. Defining consent as free and voluntary agreement, with a list of situations in which there can be no consent, does not, on its own, meet this indicator because evidence of resistance to prove that there was no such agreement may still be required by a court. In several Commonwealth countries, there is an express requirement for evidence of force or violence to prove there was no consent. This is not good practice.
