Rape is currently treated in legal terms in Estonia as a situation where the assailant makes use of coercion, force, or threats towards the victim, or exploits their helplessness.
However, in 2017, the Riigikogu ratified the Council of Europe's Istanbul Convention "Action against violence against women and domestic violence", which takes into account the principle of consent in relation to sexual crimes, and requires both parties to confirm their consent to a sexual act. The incoming coalition government now intends to adopt the principle.
According to Liisa Pakosta (Eesti 200), a former equality commissioner, said the problem with current interpretations is that the victim may resist the rapist, but often freeze-up instead.
"Gynecologists and researchers describe freezing situations as those where one party does not wish to have sexual relations under any circumstances, but is unable to very clear express that themselves, given a situation of fear. The victim freezes up and does not demonstrate any resistance. In such a situation, it must be understood that no consent has been granted," Pakosta said.
Pakosta added that, unfortunately, there are some cases where the assailant takes advantage of a victim's helpless state, meaning therefore amending the interpretation of sexual crimes is required.
Made Laanpere, creator of the sexual violence crisis center (Kriisiabikeskus) and a gynecologist, said victims often freeze-up since, when an unexpectedly major force is ranged against them, they perceive it as a life-threatening situation.
Laanpere said: "This perception of a life-threatening situation occurs reflexively, while the body has virtually no control over it."
The initial reaction of a victim of a sexual crime one of either fight or flight, Laanpere went on. "If the victim perceives that these options are not possible, they then freeze," Laanpere continued, adding that in this case it is very easy for the assailant to take advantage of the victim, while the victim may not suffer visible injuries.
New principle does not affect 'romantic' situations
Kadi Viik, a specialist in the protection of interests at the Feministeerium portal, said that a sexual culture also plays a big role in the principle of consent, meaning communication with a partner, expressing one's wishes and listening to the other party.
"Consent can be expressed in many ways: Verbally or by giving hints with body language, whether the person desires it or not," Viik said.
According to Pakosta, the principle of consent does not impinge on romantic situations. "This does not mean that the consent needs to be notarized or put in writing, absolutely not," she said.
"There will be no changes to the way romantic situations arise. The romantically-based finding of one another will continue to work in the same way," she continued, adding that judges say consent issues affect about 10 cases to have reached the courts, per year.
A clearer definition does also sends a signal to society that obtaining partner consent before sex is required, Pakosta added.
Legislative changes alone not enough
Consent laws have been adopted in 18 European countries so far. Finland was the last to adopt such a law, in January this year. According to experts, the examples of these states show that attitudes and awareness of the situation and the needs of victims of sexual violence have improved.
Viik noted that many countries have not limited themselves only to changing the law. It is also important that people working in the relevant power structures, such as the police, obtain the correct training.
It is often not understood there that if the victim does not fight back against an abuser, that this is due to trauma reaction, including the freezing-up noted above. Viik added that a victim often attempts not to antagonize their attacker, so far as they possibly can, in order to exit a situation as quickly as possible.
According to Laanpere, this type of training is also key because people who have to deal with sexual crimes must understand these trauma reactions and be able to recognize them. Otherwise, they run the risk of misinterpreting a situation
"One girl told me that she even went along with it, because she hoped that the rape would thus end sooner. It was so horrible," Laanpere recounted.
According to the gynecologist the victim had been able to analyze her action, but this is not always the case, as vicitims themselves often do not understand their own behavior. "The principle of consent provides an opportunity to deal with sex crimes more widely and based on science, as the cases are usually complex and hidden, Laanpere added.
Sexual crimes often go unreported to the police
Viik said that such crimes often go unreported to the police or the courts. However, this does not mean that literally no one is aware of them. According to Viik, for example, a victim's relatives may be aware of the situation, though the probability that the victim will venture to contact the police is very small.
"In several countries, following the adoption of the principle of consent, the reporting of sexual crimes has increased exponentially," Viik added, noting that the more victims report sexual crimes, the easier it will be to prevent them in the future.
"In this way you can find out where and in what situations the majority of sexual crimes are committed. This is required information for sexual health organizations, which can organize prevention work more effectively as a result."
When Finland adopted its consent act, this was accompanied by the creation of a website which simply and clearly explains what is covered by the principle of consent, and what is not. Viik hopes that such a practice will be adopted in Estonia as well.
"Simply changing the provision of the law will bring little if it is not accompanied by a wide-ranging change in thinking and the necessary accompanying awareness raising," Viik said.
Principle of presumption of innocence not violated by the consent act
Kadi Viik said there are generally two ways to adopt the principle of consent, namely the "yes model" and the "no model". According to the former, it is assumed that the partner does not agree to sex, unless they have expressed as much, and directly.
The assumption is that a person does not want to engage in sexual activity, and must demonstrate to the contrary ahead of doing so.
In contrast, under the "no model", consent to sex is assumed to be the case until one party expresses that they do not agree to what is unfolding.
Feministeerium backs the "yes model", Viik said."At Feministeerium, we support the 'yes model', because you can't make the assumption of anyone that they want to have sex. That still needs to be ascertained."
Neither model would violate the presumption of innocence, according to Viik.
Pakosta also stressed that as criminal proceedings, alleged sexual crimes carry with them the general principle that a person is innocent until proven guilty.
"There is certainly a concern that there may be no witnesses to a rape case, because it involves two people, but without clear evidence, the situation must still be interpreted in favor of the accused [until proven otherwise]," she said.
Pakosta added that this principle relates to the Constitution, which will not be amended in relation to this. The most important aspect in changing to the principle of consent is the societal understanding that consent is necessary, she said.
Gynecologist: The procedural process must be safe for the victim
Laanpere expressed hope that with the acceptance of the principle of consent, victims will also feel safer during procedural process. It is vital that even if a crime cannot be proven, a victim is believed when making their statements.
"The idea is that a person who has been raped, and whose physical, mental, sexual, all kinds of self-determination rights have been completely violated, should know that there was no justification for it and that they are not the guilty party," Laanpere said.
Laanpere recognized that this is due given that sexual crimes inevitably affect a victims' mental health and coping within society.
According to Laanpere, by applying the principle of consent, the Estonian state would send the message that victims are cared for and that identifying such crimes is important for the state. In this way, victims would dare to approach the police more than they have done, the doctor said.
Wording of the principle of consent and the date of entry into force still unknown
According to Pakosta, the incoming coalition plans to amend the Penal Code into line with the Istanbul Convention, but it is not yet known when that will enter into force.
She said: "We shall soon see how the points within the coalition agreement translate into a work plan. I would venture to think that the alterations referrng to the principle of consent will not appear in the first few weeks, because it is extremely important to consider carefully the wording of the principle, so that the change fulfills its purpose from the victim's point of view, yet does not harm other parties."
Markus Kärner, deputy secretary general for criminal policy of the Ministry of Justice, says the wording of the principle of consent should also be thoroughly thought through. "Does acceptance of money or other benefits also fall under consent, or will a more precise list be drawn up as to the cases in which the principle has been violated," Kärner said.
Editor: Andrew Whyte, Mait Ots