Justice for all: consent and LGBTI+ rights

By Mariya Alfa Staugaard

This article discusses sexualized violence

No matter who you are, and who you are sexually attracted to, the right to a life free from sexualized violence is one of our most basic rights. Rape is a crime that is often described as one of the most violating things a person can be subjected to. But when it comes to legislation, there is not always agreement on how to define the concept.

In recent years, there has been an on-going debate in Denmark about whether to amend the existing rape legislation to be based on consent. As the law stands today, the definition of rape is based on whether violence or threats of violence were used in the act. This does not match the reality of many experiences, however, since it is a common reaction for the person to freeze and remain passive during an assault – under the current legislation, such incidents are not addressed as rape and go largely ignored. For years, activists have been fighting to have the law changed, and when Sweden did so in 2018, the issue resurfaced in Denmark with renewed energy. But here we are, two years later, and with an explicit promise from the prime minister to implement the necessary changes, yet the fight is still on-going.

In June, minister of justice Nick Hækkerup issued the statement that he was going to take a “thinking break” before continuing the work on the new legislation. In response to this, a Consent Guard, made up of activists, has been standing in front of Christiansborg Castle every day with a clear message: the longer we wait, the more people will be assaulted without having the option of seeking justice.

A straight issue?

When discussing rape, the same image tends to form in people’s minds. A dark alleyway. A lone woman walking home. A strange man jumping out of the bushes. The truth is, this image rarely aligns with the reality of most sexualized assaults. According to The Danish Crime Prevention Council, 67% of all rapes happen in private homes and in most cases the parties know one another, for instance as friends or partners. The image of the male perpetrator and the female victim is not necessarily adequate either. While it is true that this is most often the case, prevention work is made increasingly difficult by not recognizing that assaults happen across the gender spectrum. As a consequence of this, the already slim chances of victims getting legal retribution is reduced even more. Statistics already show that only a fraction of rapes get reported, and only very few of those result in a verdict.

Ida is a volunteer coordinator for Everyday Sexism Project Denmark and is one of the forces behind the Consent Guard. Ida is an LGBTI+ person herself, and draws attention to the issue of there being so little data available: “We’re sitting in front of Christiansborg with a sign that says ’65 women a day’ and that’s because those are the only statistics we have. I actually think people could be much angrier that there aren’t more surveys to show how many LGBTI+ people experience sexualized assaults. It shows that there’s still marginalization.”

Last year, the report SEXUS was published – the largest survey to date on the sexual lives of Danes. It included a section on sexualized violence, which showed that LGBTI+ people are at a high risk of assault and harassment. Bisexual women are worst off with 31% of the respondents in this category stating that they had experienced sexualized assault at least once. It is happening on a scale that is impossible to ignore, and still we rarely address the special circumstances that can affect the LGBTI+ community. Trans-, homo- and biphobia may very well all play a part in sexualized violence, but we lack the knowledge to map exactly how these forms of discrimination are relevant.

Ida’s cousin Tobias is also an LGBTI+ person and has been standing as a Consent Guard, although he has not been active on the issue before. He acknowledges that the heteronormative view of assault does not feel adequate: “You see all these news stories about rape, and the first thing that comes up is ‘x number of women’. But there’s a lot of other people who are exposed to it – and we forget about that.” As a gay man, Tobias has experienced for himself how there can be difficulties in the community when it comes to addressing boundaries: “When I started going to gay bars in Copenhagen, places I thought would be relatively safe, I quickly found out that it was seen as okay for people grab and touch you. And after a couple of times, I started doing it myself. It becomes so normalized, even though it’s definitely not okay.”

In addition to encouraging more research, a new law with emphasis on consent is in the direct interest of LGBTI+ people. Mads Hvid, political and strategic advisor for LGBTI+ Denmark asserts that, “consent-based legislation is of immense importance for all parts of the LGBTI+ community. Historically, sexualized violence has been used actively to combat LGBTI+ people and our rights. At the same time, we know that when it comes to reporting hate crimes, many who belong to sexual or gender-based minorities are nervous about reporting and confronting authorities.” The implementation of consent-based legislation must also be followed by improved training of police and other institutions, so that the encounter does not become another trauma should a person choose to report.

A collective conversation

There are plenty of reasons why the fight for consent-based rape legislation, as well as long term prevention work, is of importance to the LGBTI+ community. The centuries-long marginalization of LGBTI+ sexualities has meant that people who have same-gender sexual relations are not accounted for in the conversation about sexualized assault. That is why it is important to take a collective stand against any form of sexualized violence, both outside and within the community. Ida elaborates on how crucial solidarity is in this context: “I think it is vital to make it a collective process. There is a powerlessness in claiming your boundaries in an environment where being touched is the norm. You feel like you’re risking exclusion – so it has to be a conversation we all have together.” 

This conversation needs to start at an early age. By putting consent on the agenda and incorporating it into sexual education in schools, we can enable young people to explore their sexuality in ways that do not cross their own boundaries or those of others. Consent-based legislation will show that we, as a society, demand that people ensure their sexual partner(s) are comfortable with what is happening. But if LGBTI+ identities are not actively included in this change, we run the risk of sexualized assault and violence continuing under the radar. Tobias stresses this point: “If we get a consent-based rape legislation, the conversation about consent will follow, because it’ll be something we are taking a stand on.”

Including LGBTI+ identities in the fight for consent-based legislation is not about removing focus from the fact that sexualized violence often takes place within a heteronormative framework. Instead, it is about expanding the conversation surrounding consent and boundaries to include more people, who will then become conscious of caring for themselves and one another when it comes to sexual experiences. It is also about justice – about feeling sure that should you be the victim of such a heinous crime, you will be met by a justice system that recognizes that rape is not always about the man in the bushes, but happens in many different relations and across the spectrum of gender identity and sexual orientation. We will only have justice in earnest when justice is for all of us.

Sexualized violence and the LGBTI+ community

Percentage of respondents who have experienced at least one assault based on sexual orientation

• Heterosexual men: 1,2%
• Homosexual men: 7,2%
• Bisexual men: 8,2%
• Heterosexual women: 11,4%
• Homosexual women: 17%
• Bisexual women: 31%

Source: SEXUS (2019)