Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

198 PRACTITIONERS GUIDE No. 12
shared responsibility for sexual behaviour and its
consequences.” 526
The State must establish and implement a legal framework that
respects equality between individuals in freely agreeing to
sexual conduct. Some argue that true “consent” can only be
established by an expressly manifested affirmation by both
parties, especially women. For example, in the case of M.C. v
Bulgaria, Interights submitted a third party intervention
arguing that:
“The equality approach starts by examining not whether
the woman said 'no', but whether she said 'yes'. Women
do not walk around in a state of constant consent to
sexual activity unless and until they say 'no', or offer
resistance to anyone who targets them for sexual
activity. The right to physical and sexual autonomy
means that they have to affirmatively consent to sexual
activity.” 527
In this case, the European Court of Human Rights noted that:
“[T]he evolving understanding of the manner in which
rape is experienced by the victim has shown that victims
of sexual abuse – in particular, girls below the age of
majority – often provide no physical resistance because
of a variety of psychological factors or because they fear
violence on the part of the perpetrator.
“….Moreover, the development of law and practice in
that area reflects the evolution of societies towards
effective equality and respect for each individual's
sexual autonomy.
526
Beijing Declaration and Platform for Action, Report of the Fourth
World Conference on Women, UN Doc A/CONF.177/20/Add.1 (1995),
paragraph 96.
527
Submission of Interights to the European Court of Human Rights in
the case of M.C. v Bulgaria, 12 April 2003, paragraph 12.