Only yes is yes

Violence against women

Consent law, what changes if it is passed?

By adopting the principle, Italy aligns itself with 21 other countries that have already complied with the precepts of the Istanbul Convention

by Carla Bassu*

25 November 2025

3' min read

Translated by AI

Versione italiana

Key points

But what would actually change?

3' min read

Translated by AI

Versione italiana

After the unanimous yes obtained last week in the Chamber of Deputies and the transversal agreement between the leaders of the government and the main majority party that seemed to have armoured the reform, the bill to amend the crime of sexual violence to explicitly introduce the concept of 'free and current consent' was unexpectedly blocked in the Senate. The final vote was expected today, 25 November, but, surprisingly, part of the majority demanded further consideration of a text that seemed to have everyone in agreement and that brought Italy into line with the requirements of international law on gender violence.

If the additional investigation dispels the doubts of the undecided senators and the text approved by the Chamber is finally confirmed, the concept of 'free and present consent' would be explicitly introduced into our legal system and become a prerequisite for the lawfulness of sexual acts. According to the renewed wording of Article 609-bis of the Criminal Code, 'anyone who performs or causes another person to perform or undergo sexual acts without the latter's free and present consent shall be punished by imprisonment of six to twelve years'.

This is not a merely symbolic novelty, but an important change in procedural perspective, which intervenes in favour of those who, in order to prove that they have suffered violence, often find themselves exposed to secondary victimisation.

But what would actually change?

In fact, until now, in rape trials, in order to prove abuse it was necessary to prove the element of coercion and threat, and at this stage, complainants were asked to account for elements related to their lifestyle or personal choices of attitude and even clothing that, not relevant to weighing up violence, not infrequently resulted in humiliating and belittling insinuations for the victims. Thus, for example, women subjected to the scientifically proven phenomenon of 'freezing', which literally immobilises victims, unable to react, move and scream in the face of violence, had to face the frustration of proving the abuse they suffered.

Similarly, in the case of coercion within an established relationship or after having taken drugs (voluntarily or involuntarily), the ascertainment of violence could be so difficult and burdensome as to discourage women, to the point of pushing them to renounce the complaint, so as not to bear the burden of a probatio diabolica.

In the light of the new rules, consent must be free, i.e. the expression of a clear, present will, i.e. it can be withdrawn at any time and can never be assumed, for instance in the case of silence, either before or during sexual intercourse.

Critics argue that this will lead to a bureaucratisation of love, and web forms of consent to be submitted to the lover are circulating, which, in a flourish of clumsy irony, would like to imply the end of romance. In reality, it is hard to see how explicit consent can invalidate moments of more or less impromptu passion, unless they are unilateral impulses that should always be stigmatised and sanctioned.

Again, it was pointed out that jurisprudence already took great account of consent at trial, but judgments to date have been of a tenor that is, to say the least, heterogeneous and sometimes offensive to women, who are called to account for irrelevant elements in relation to the violence they have suffered.

The presence of a clear legal reference prevents a case similar to the Spanish case of the 18-year old victim of 'la manada', the pack of five men who raped and filmed the girl rendered immobile by shock during the San Fermìn festival in Pamplona and were convicted of sexual abuse and not rape, because of the victim's lack of reaction.

By adopting the principle of explicit consent, Italy aligns itself with twenty-one other countries that have already conformed to the precepts of the Istanbul Convention on violence against women. Among these is Spain, where the de la manada case caused a public mobilisation that brought thousands of people into the streets to contest the Pamplona sentence (later overturned on appeal) and prompted the Parliament to adopt the 'Law for the integral guarantee of sexual freedom'.

The introduction of the principle of explicit, free and current consent is a step of civilisation taken thanks to an awareness that, at least in Montecitorio, has united the majority and the opposition in a shared choice of responsibility that has, however, turned out to be evanescent, given what happened in the Senate. It would be nice and useful for the country if, at least on such important issues, ideological and instrumental conflicts that undermine the political scenario and contribute to fuelling the sense of distrust towards institutions perceived as hopelessly quarrelsome were overcome.

*faculty professor of Comparative Public Law at the University of Sassari