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~~I feel "word or deed" isn't the entire story, right? Once the burden of proof is this way around, and it's a he-said-she-said case like with spoken word, you'll kind of want to fill out a form and have it in writing.
But word or deed is the right thing to do, you shouldn't have sex unless it is clear the other person is on the same page, and they show it in some way.~~
Edit: I think my previous take here wasn't super clever. Seems the main achievement of this bill is rewriting law so sex is about consent. Directly. And not defining rape via some other things like coercion or violence (which might have loopholes or other issues). And now consent (or the lack thereof) is the deciding factor.
It is still criminal law so "innocent until proven guilty".
The issue was that before "didnt resist, but wasnt physically incapable" was enough to not make it rape, even if there is other reasons why the victim might not resist, being too scared to resist being the obvious one.
You have to think about situations where one did consent at first, but later, afterwards, changes their mind.
There will be no real evidence, but then the accuser will (must) be regarded a witness.
1:0
The accused has no way of getting out.
Luckily the courts are smarter than that.
/Swede, where we had the same change to our laws a few years back
So, how do they solve it?
(As far as I remember, they didn't when it went against Julian Assange)
That law wasn't in effect and wouldn't have applied to Assange. However, the facts that he admitted to would constitute rape even under the previous law. (He penetrated her without condom when she had previously consented to sex based on the premise that a condom was used).
Courts together with the police are quite good at figuring out when a story doesn't hold. We actually had such a case just these last few days where the woman got sentenced instead for having lied about being raped.
So, how do they solve it?
How is that different from now?
In most cases there is only the accuser and accused that are witnesses.
The court will still have to evaluate if the statements made are believable and evidence is consistent with it or not.
Sweden has these laws since quite a while. Contrary to the outrage back then, it seems there has been no relevant increase in false allegations being prosecuted.
I understand that now a determined lack of consent can get you sent to jail, but I don't understand how are they going to prove lack of consent. And changed consent (strong yes then no) is also going to be difficult to prove.
How does this law change the burden of proof?
Good question. I was under the assumption lawmakers don't mandate something to exist (consent), unless it's also someone's obligation to take care of it. And it obviously can't be the injured party... But you might be right, there is more to it. Unfortunately it's kind of hard to get the exact wording of the bill. The journalists don't seem to provide any links for me to look it up. But yeah, I'll edit my post, that was mostly my speculation.
I think some people are getting confused and are thinking it's about signing a consent form (if I understand correctly from the comments), but actually prosecutors would still have to prove that consent did not happen. Sex without consent was already sexual assault under the previous law so what will change is the crime one can be charged with for a certain act and (presumably) the maximum sentence.
I'm not sure about that either. From what I read sex without consent was not necessarily a crime under the previous law, and that's what they fixed?! I finally have to find some source and read what actually happened and what's in the bill and not just some summary...
Edit: From reading a few news articles, I'd say consent wasn't the deciding factor under previous law. So technically having sex without consent was fine. Unless there was something like coercion or violence involved. And likely there are quite some loopholes with that.
Oof. Then the old law was insane and this is a much greater correction than I thought.
That does nothing for withdrawn consent or limited consent. This means once you sign, anything goes, and your ability to claim otherwise it's likely zero.
This is good for the law, but likely enhances retaliatory claims and quells legit claims of withdrawn consent. On the other side it makes positive kit tests with no consent document a slam dunk.
You're right. You can't issue a blank check. Or you can't ever change your mind later on. So having consent in writing is certainly not a good idea.