The Concept of Consent in Articles 36 and 39 of the Istanbul Convention: Implementation and Compliance of the Notion in the Legal Systems of the Parties

Abstract

The concept of consent has long been related to the field of ethics, but it becomes of fundamental importance in law. In recent times, this notion has become part of the definition of some forms of violence against women. Consent is the key element that differentiates an illegal act from a lawful one. The purpose of this research is to analyse this notion as applied to the crimes of sexual violence and forced abortion and sterilisation, and to demonstrate that this term is still missing from some national legal systems of the States parties to the Istanbul Convention. The research first introduces the concept of consent in its multidisciplinary application, thus in both ethics and law. In the second chapter, the analysis focuses on framing of the notion in sexual violence and forced abortion and sterilisation. The dissertation observes limitations and obstacles that consent presents in these crimes. The research subsequently analyses how the concept of consent has been enshrined at the regional level. In particular, it focuses on Article 36 and Article 39 of the Istanbul Convention, one of the most comprehensive legal instruments on violence against women. In the fourth chapter the implementation and compliance of the Convention by State parties is examined through the analysis of GREVIO’s Baseline Evaluation Reports. Finally, the research focuses on the European Union, given its recent ratification of the Istanbul Convention. The main normative consequences of the adopted legislative resolutions are analysed, including possible limits and obstacles that the implementation of the Istanbul Convention may encounter in relation to the inclusion of the concept of consent in crimes of sexual violence, forced abortion and forced sterilisation.