From silence to consent: the work is far from done

The Times of Malta editorial (July 8) ‘Malta needs answers about rape’ asks the questions that matter.

How many rapes remain hidden; whether victims feel able to seek justice; do they trust the justice system enough to come forward; and whether society is doing enough to prevent sexual violence in the first place. These are precisely the questions we should be asking and that’s where the conversation ought to begin, before we ask how many rapes are reported.

The editorial also draws attention to Mr Justice Mark Simiana’s judgment of May 11 in the Emma Agius case. He overturned an earlier decision that had effectively treated a woman’s silence during a sexual assault as consent. Reading that judgment, one thought immediately came back to me: this should never have been in doubt in the first place.

Silence is not consent.

We had introduced the consent-based definition of rape into Maltese law through the 2018 reforms implementing the Istanbul Convention.

We wanted to move away from outdated assumptions that placed the burden on victims to prove resistance.

The absence of a “no” cannot be interpreted as the presence of a “yes”. Consent is not something to be assumed. It must be given freely.

Eight years later, Mr Justice Simiana’s judgment reaffirmed precisely that principle. It wasn’t simply about correcting one legal interpretation. It asserted again the philosophy behind the law itself.

A few years after those reforms in Malta, as European Commissioner, I found myself trying to take exactly the same principle to the European level.

In 2022, at the European Commission we proposed the first-ever directive on combating violence against women and domestic violence. At its heart was Article 5, which would have established a common European definition of rape based on the absence of consent.

I believed then, and I still believe now, that it was one of the important provisions in the proposal so that law tells society whose experiences matter. It tells victims whether the legal system understands what happened to them.

But Article 5 did not survive the negotiations.

Some member states argued that the European Union lacked the legal competence to harmonise the definition of rape. The debate became one about treaties, competences and legal bases.  Those questions were important, but something essential was lost along the way.

Too often, the discussion centred on institutional boundaries rather than on the people the law was intended to protect.

Sexual exploitation rarely depends on overt physical force alone. It thrives on manipulation, coercion, dependency, economic vulnerability, intimidation and profound power imbalances. Consent is what separates sexual autonomy from sexual exploitation.

When legal systems fail to place consent at the centre, they risk obscuring the lived reality of victims.

We chose to place consent at the centre of our understanding of sexual violence- Helena Dalli

But as important as legislation is, and I spend much of my professional life working on it, I have also learned that passing a law is never the finish line. It is only the beginning.

Laws establish rights, set standards and send powerful signals about the kind of society we want to become. But, in certain cases, societies change more slowly than legislation does.

We need victims to know they will be believed, supported and treated with dignity.

We need people to feel confident enough to report crimes rather than fear the process that follows.

We need better research and better data, exactly as the Times editorial argues, because assumptions are no substitute for evidence. We need to understand not only how many rapes occur, but why so many remain hidden, why cases fall away, and what still discourages victims from seeking justice.

We need schools to teach consent not simply as a legal definition but as the basis of healthy, respectful relationships.

We need police officers, lawyers, judges, healthcare professionals and educators who recognise how stereotypes about victims continue to shape decisions, often without anyone even realising it.

And perhaps most importantly, we need a culture where respect, equality and consent become ordinary expectations rather than exceptional lessons.

That is how societies prevent violence, not simply by punishing offenders afterwards, but by reducing the conditions that allow abuse to happen in the first place.

Mr Justice Simiana’s judgment is therefore significant for reasons that reach well beyond one case. The Emma Agius case is important not only because it corrected one legal interpretation, it reminds us that Malta made an important choice in 2018. We chose to place consent at the centre of our understanding of sexual violence.

That choice was the right one.

But the work it began is far from finished; the evolution must continue.

Justice is built in courtrooms, certainly. Yet it is also built in classrooms, around family tables, in workplaces, in universities, in the media and in every conversation that shapes how we understand dignity, equality and respect.

Laws matter because they establish standards. Courts matter because they uphold those standards. But neither can change society on their own. That work belongs to all of us. 

Silence is not consent.

Ensuring everyone understands that principle remains an important work in progress.

Helena Dalli is a former European Commissioner and Labour minister.