AMNESTY INTERNATONAL
INTERNATIONAL SECRETARIAT
e:
t:
+44-20-74135500
f:
+44-20-79561157
1 Easton Street,
London, WC1X 0DW,
United Kingdom
www.amnesty.org
Reference: TG EUR 18/2020.1199
Legal Committee
2 December 2020
Dear Legal Committee Members,
REFORM OF THE LEGAL DEFINITION OF RAPE IN DENMARK
Last week, the Danish Parliament considered the government's proposal for a new Danish rape law. After
organizations, rape survivors, activists and politicians have worked on reforming the legal definition of rape in
Denmark, it now seems possible that the new law will be passed by an overwhelming majority. That means Denmark
will soon say goodbye to a decades-old notion that it is the victim's own responsibility to prevent rape; instead,
Danish legislation will clearly state, for present and future generations, that sex must be based on mutual consent,
otherwise it is rape.
Amnesty International has been working on access to justice for rape in Denmark, and in Europe more broadly, for
several years. In March 2019, we launched an in-depth
report “Give
us respect and justice!” Overcoming barriers to
justice for women rape
survivors in Denmark”
and held a meeting with representatives of the Ministries of Justice and
Equality and Education.
Amnesty International welcomes your efforts in this regard. The reform will be celebrated not only in Denmark but
internationally. As part of an international campaign, Amnesty International collected more than 17,500 signatures
from over 80 countries around the world calling on the Danish authorities to change the rape law. But even though
there is historic progress in sight, the draft is not quite there yet, which is why I am writing to you. Before the law's
second reading in the Legal Committee and the third reading and the vote, I would like to raise your awareness as
members of the Legal Committee that some details of the proposal still need to be changed in order to have a law
that is compliant with Denmark’s international human rights obligations, to
fully reflect in the law that sex without
consent is rape.
The Legal Commentary to the forthcoming consent law in its current wording states that even "total passivity" after a
"concrete and overall assessment" will be able to constitute consent. The commentary continues stating that it will
"naturally
be possible to include in the assessment"
whether the parties have previously had intercourse in a similar
way.
I would like to warn clearly and loudly against both the wording and the underlying notion around passivity and sex:
consent can only be given actively, whether it is given verbally or by action. Consent is not a one-off agreement which
cannot be revoked, consent is ongoing and can be withdrawn at any time if someone changes their mind about
continuing. Consent to sex, however it is expressed, needs to be given by all parties involved each and every time. Any
deviation from that principle risks both vague legislation and keeping alive the misleading notion that people who have
once had sex can assume consent in the future. It is just as problematic if, in a Danish court, total passivity during a
previous sexual encounter can be interpreted as consent to sex on a later occasion. Having sex in practice means that
there must be a minimum of active participation, and its absence should not be confused with consent. On the contrary,
total passivity on the part of one party should give the Danish courts an opportunity to consider whether previous
occasions with total passivity have not been abuse rather than passive participation.
Amnesty International Limited. Company limited by guarantee, incorporated in England & Wales Company Registration 01606776.