A-Infos (en) Italy, FAI, Umanita Nova #13-26 - The Meaning of Consensus. Rape Bill: Reviving the Struggle Beyond Exploitation (ca, de, it, pt, tr)[machine translation]

There has been much discussion in recent months about the new bill on 
sexual violence, which seeks to "update" legislation dating back to 
1996, with the aim of identifying and defining the crime of sexual 
violence and its punitive response. This is a strictly legal approach to 
developing sanctions, completely alien to feminist and transfeminist 
action and the prospect of social transformation. ---- The issue of 
violence and the rape culture that fuels it is central to the fight 
against patriarchy and sexism, and legislative action certainly does not 
provide solutions-quite the opposite. However, considering the path this 
bill has taken in recent months is interesting for understanding how 
institutional policy uses the issue of sexual violence and how the 
punitive response to sexual abuse is developed at the legislative level.

Since 2011, the Istanbul Convention has recognized consent as a 
fundamental element in determining whether or not a situation 
constitutes sexual violence and requires signatory states to criminalize 
sexual acts performed without consent. Despite having signed the 
Convention in 2013, Italy has never amended its legislation. To avoid 
incurring the penalties already imposed on Romania and Bulgaria, Italy 
has therefore decided to revise the 1996 law.

Last November, the Chamber of Deputies approved a bipartisan bill, 
agreed upon by the majority and the opposition, which amended Article 
609 of the Criminal Code by introducing the term "free and actual 
consent," meaning consent expressed without conditions and maintained 
for the entire duration of the relationship. Without these 
characteristics, the sexual act is considered rape. This change is 
significant, given the centrality attributed to consent.

This all came to a very short end. The bipartisan agreement, born for 
obvious window dressing just a week before November 25, the 
International Day for the Elimination of Violence against Women, quickly 
collapsed miserably. Right-wing parties, led by the League, began to 
fret, fearing scant guarantees for rape defendants. They raised the risk 
of a reversal of the burden of proof, and invoked the principle of due 
process, which never applies to other defendants. In December, Bongiorno 
withdrew from the bipartisan agreement and announced she wanted to 
remove the adjectives "free and current" and replace it with 
"recognizable." This was a significant shift in perspective, removing 
two qualifying adjectives and relativizing the concept of consent. 
According to this perspective, consent must be expressed in a certain 
way and must be of a quality that makes it recognizable to those seeking 
sexual intercourse. The rapist must be protected because he could have 
been inattentive at the time, perhaps had a hearing problem, and in that 
case nothing can be blamed; he simply didn't understand that there was 
no consent. In short, the trial will judge not the rapist's violent 
behavior, but the quality and effectiveness of the consent expressed by 
the victim.

It was December, and criticisms and protests immediately arose. The 
opposition saw not only the bipartisan agreement fading, but also the 
issue slipping away, and so it attempted to regain prominence with an 
absolutely insane compromise proposal, made in early January, even 
within the Institutional Commission, by the Democratic Party and its 
ilk: remove every adjective and leave only consent. In other words: who 
cares if the consent isn't free, if it was extorted or manipulated? Who 
cares if perhaps they later changed their minds and no longer wanted to 
carry out a sexual act imposed by someone else? The important thing is 
that the term exists, even if it's empty, and that we can take credit 
for aligning ourselves with the Istanbul Convention.

But Lega Nord member Bongiorno, also strengthened by the opposition's 
disarray, completely distanced herself from the bipartisan agreement and 
drafted another text, approved on January 28 by the Senate Justice 
Committee. The issue was completely reversed; the term "consent" 
disappeared, replaced by "contrary will." In practice, anyone taking 
legal action for rape will have to demonstrate that they have clearly 
expressed their opposition. Dissent instead of consent.

When it comes to establishing rape, the difference is enormous. 
Emphasizing the presence of consent means that anyone wishing to engage 
in sexual activity must verify the other person's consent and not assume 
their willingness. Reversing the issue and focusing on dissent, on the 
other hand, means assuming the sexual willingness of the victim. The 
victim must demonstrate that they clearly expressed their opposition or 
the reason for their refusal, which will then be examined: was she 
drunk? How drunk? Was she blackmailed, threatened, or subservient? Was 
she paralyzed by fear? How can this be proven? To argue that violence 
occurred, the woman, like any abused individual, must demonstrate that 
she resisted and did so effectively. According to the Bongiorno Bill, it 
is up to her to know how to manage a violent relationship, even if she 
finds herself in an unequal situation, even if she is afraid, 
threatened, blackmailed, or even if she lacks awareness. Men can easily 
continue to believe that a woman's body is at their disposal; millennia 
of patriarchy allow it, and the law of their ancestors confirms it.

Unfortunately, we have already seen this in courtrooms and have 
repeatedly denounced it as institutional violence, as rape culture.

To reject the Bongiorno bill, street protests and various initiatives 
immediately erupted, launched by NonUnaDiMeno, various collectives, and 
anti-violence centers.

However, those who, in a completely incongruous manner, also took action 
were the institutional sectors of the opposition parties, the same ones 
who had irresponsibly removed the qualifying adjectives from the word 
"consensus." These sectors, supported by the ever-present CGIL union 
apparatus and the Rete D.i.Re network, also launched public initiatives 
in February.

It took a great effort to avoid annoying and unacceptable exploitation 
and to give the March 8th demonstrations the strong transfeminist 
character that has marked almost a decade of struggle, with a 
comprehensive analysis and anti-institutional action that placed 
systemic violence and rape culture at the center.

It wasn't easy (and not everywhere successful), also because there's an 
intermediary world-that of institutional anti-violence centers and 
large-scale anti-violence networks, like D.i.Re.-which in some areas 
moves with ease between ministerial offices, institutions, and 
movements. It wasn't easy, but we did it. And now is the time to 
intensify the mobilizations.

The outcome of the referendum at the end of March prompted the 
right-wing government to temporarily ease back on at least some issues, 
deemed evidently less urgent and at the same time unpopular, such as the 
rape bill, which had sparked much and strong protest. The bill's 
progress has thus undergone a change. Instead of proceeding directly to 
the Senate floor, where approval was scheduled for April 8th, Bongiorno 
deemed it appropriate to create a select committee and make some 
institutional arrangements with the opposition. Evidently, the 
government majority, in the immediate aftermath of the referendum 
defeat, momentarily overestimated an opposition that, on this and other 
issues, foolishly toyed with the advantage gained from the referendum, 
squandering it in its characteristic inertia, the result of a lack of 
interest in even the slightest change, further demonstrating opportunism 
and incompetence. As the days passed, the right quickly realized there 
was little to fear. At the first session of the select committee on the 
rape bill, the opposition found itself alone in the trap of dialogue 
with the fascists set by Bongiorno, who didn't even show up for that 
meeting.

This is the paltry manner in which the institutions have treated the 
bill that should identify and punish violence through legal channels. An 
undignified exercise that has exploited the concept of consensus in a 
superficial and instrumental manner: the government opposition supported 
it purely for political visibility, but has demonstrated its view of it 
as a meaningless term; while the majority has opposed consensus to the 
point of eliminating it from the text, to emphasize the macho and sexist 
identitarianism so dear to fascists.

For us, consensus is something else entirely, and it's time to continue 
the fight, making it clear to those who still had some faith in the 
institutional solution and those who trusted in the miraculous powers of 
the "no" referendum that on this, as on so many other issues, there are 
other paths to follow. For us, consensus is not an empty term.

The feminist and transfeminist movement has built debates, insights, but 
also experiments and experiences around the concept of consent, with the 
collective intent of breaking the rape culture that signifies 
possession, abuse, and the right of men to believe that bodies are 
always at their disposal. Breaking this sexist and patriarchal culture, 
educating and educating ourselves about consent, is difficult. It 
requires complex work, a profound cultural shift, supported by a social 
perspective that must be radically different from the current one. This 
is precisely what we must continue to fight for, against and beyond the 
Bongiorno bill. Because a bad law certainly won't stop the transfeminist 
struggle.

Consent is a practice to be cultivated, to be adopted in all 
relationships, not just sexual ones, but also in more general relational 
modalities. It is also a way of discussing without prevarication, of 
making decisions without majority opinion, of relating interpersonally 
and collectively, freeing ourselves from hierarchy. Consent is a 
conscious and safe way of having sex, but also a conscious and safe way 
of being in the world and concretely thinking about a different world.

Patrizia Nesti

https://umanitanova.org/il-senso-del-consenso-ddl-stupri-rilanciare-le-lotte-oltre-ogni-strumentalizzazione/
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