A Comparison of Sexual Assault Laws and Some Advice for Law Reform

Abstract

Abstract The concluding part maps differences and similarities in the six jurisdictions under study. Tatjana Hörnle observes that the intensity of public interest and political controversies about sexual assault laws have grown over time. Regarding the preferred models of consent, the attitudinal model still is dominant; only the new Spanish law has introduced a clearly performative understanding of consent. The general structure of sexual assault laws also shows interesting differences, for instance, regarding the definitions of sexual acts, the use of presumptions and the detailedness of aggravating circumstances. Hörnle also points out different approaches to mens rea and defendants’ errors: while some countries still rely on traditional notions that accept even the most unreasonable and reckless errors as reasons to negate any criminal liability (Germany and Spain), Swedish law now has introduced the offence of grossly negligent sexual assault for such cases. The last section deals with future law reform in countries that have not yet done the step towards modern sexual assault laws but consider to do so. Hörnle argues that politicians and law-makers need to pay more attention to the foundations of sexual offence laws, particularly the unavoidable choices regarding the concept of consent and the balancing of negative and positive autonomy. The chapter ends with reflections regarding the structure of thinking about law reform and the proposal to proceed in eight discrete steps when drafting new versions of sexual assault law.