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202 PRACTITIONERS GUIDE No. 12
universal trend towards regarding lack of consent as the
essential element of rape and sexual abuse.” 535
(emphasis added)
In the case of Karen Tayag Vertido v the Philippines, the
CEDAW Committee reflected these developments by making
the recommendation that the respondent State enact a
definition of sexual assault that either:
a. Requires the existence of “unequivocal and voluntary
agreement” and requiring proof by the accused of steps
taken to ascertain whether the complainant/survivor
was consenting; or
b. Requires that the act take place in “coercive
circumstances” and includes a broad range of coercive
circumstances. 536
The Istanbul Convention also reflects these developments in
defining rape as:
1. “(a) engaging in non-consensual vaginal, anal or oral
penetration of a sexual nature of the body of
another person with any bodily part or object;
“(b) engaging in other non-consensual acts of a sexual
nature with a person;
“(c) causing another person to engage in nonconsensual
acts of a sexual nature with a third
person.
2. “Consent must be given voluntarily as the result of the
person’s free will assessed in the context of the
surrounding circumstances.” 537
535
Ibid, paragraph 163.
536
Vertido v The Philippines, CEDAW Communication 18/2008, UN Doc
CEDAW/C/46/D/18/2008 (2010), paragraph 8.9(b)(ii).
537
Istanbul Convention, above note 509, Article 36.