Sexual violence is a grave and systematic human rights violation (CREA, 2020) that has been punished and analysed mainly with the use of one single paradigm. In an international contest in which violence against women has been spreading and is recognised to be aglobal phenomenon, the latest Spanish law known as the law of “only yes means yes” (CG, 2022) appears to represent a historical change in the interpretation of free consent and on the regulation of this crime. Definition of sexual violence According to the General Assembly of UNO, violence against women is a pervasive form of gender discrimination, affecting an estimated one third of women during their lifetime. It includes any act of gender-based violence that results in, or is likely to result in, physical, sexual orpsychological harm or suffering, including threats, coercion orarbitrary deprivation of liberty (UNO, 2022). In addition the phenomenon of sexual violence is connected to socio-economic and political aspects that may be intensified in situations of crisis as armed conflict or poverty caused by displacement or resource scarcity. The paradigm Being a criminal offence, sexual violence is regulated by the single States’ laws and each States’ legislation gives different interpretations assigning different legal consequences. The single paradigm abovementioned that is generally used is the one that concentrates on measuring the violence in the facts and on the conditions, like coercion, that make them definable as acts of sexual violence. Despite being a keypoint in the regulation of the matter,many law systems do not consider, at least in their general provisions, the importance of consent and how it substantially affects thetopic. The importance of consent is explicitly mentioned in the IstanbulConvention from 2011 which, in Article 36, claims that non-consensual acts of a sexual nature must be criminalized and adds that consent must be the result of the person’s free will, given voluntarily and evaluatedconsidering the circumstances(CoE, 2011). Regulation of sexual violence in different law systems In Italy rape is regulated by Article 609 bis of the Penal Code which assumes that the crime has to beassociated with coercion reached through physical violence, threat, or abuse of authority. This definition of coercion implicitly refers to a lack of willing and of the victim, but it does not explicitly explain the role of consent of the subject. In the UK, sexual offences are regulated in the Sexual Offences Act 2003 inwhich a difference between rape, assault by penetration and sexual assault is made. Rape is defined as an actof intentional penetration in offence of a person who does not consent to it, andduring which the rapist does not reasonably believe that the victim consents. The reasonability of that belief has to be determinedtaking into account the circumstances and the actions that the person made to determine the consent of the victim (Legislation.gov.uk,2003). The Ley Orgánica 10/2022, de garantía integral de la libertad sexual (CG, 2022) promotes a new paradigm of regulation of sexual violence that bases its roots in consent. Indeed, inspired by the feminist movement that promoted the “no-means-no” model which has also leaded the change of the German law on rape andsexual violence. In the German case, the old law required coercion as a necessary feature of rape and other forms of sexual assaults, while the new form of the Sect. 177 StGB refers to acts against the recognizable will of the victim specifying different variations (Hörnle, 2017). The Spanish Penal Code also considered intimidation a necessity to define an act as a sexual violence andnot only an abuse, but the newlaw offers a “only yesmeans yes” model that aims at raising awareness and enshrines consent as the keyto sexual freedom. Conclusion The traditional model based on coercion demands the victims’ obligation to physically resist the aggressor. The development of new laws following the “no means no” model outlines the possibility of further endanger of this behaviour and recognises the expression of dissent communicating (using words or gestures). This model is enriched by new proposal of the “only yes means yes” model that is based on affirmative consent (Hörnle, 2017). It proposes an innovative paradigm that more inclusively responds to the necessity of an adequate regulation of the matter and the need of raising awareness on the meaning of consent in sexual violence in order to share a culture of sexual freedom based on consent.
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