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When Is Rape, Rape? Everything You Need To Know About Consent Laws In Malta

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Sexual abuse is an abhorrently widespread issue in Malta, but few reports ever get to the desks of police.

But how can we expect victims to come forward when they don’t know what the laws against sexual offences are?

What even is rape? What is consent? Can you change your mind after saying yes to doing something? Is cat-calling against the law?

This is your handbook for everything you need to know about rape, sexual harassment and consent in Maltese law. 

1. When is rape, rape?

Rape is a crime as per article 198 in Chapter Nine of Malta’s Criminal Code. It is defined as non-consensual vaginal, anal or oral penetration of a sexual nature from the body of another person with any bodily part or object.

This means rape could be nonconsensual intercourse, being forced to do oral or being penetrated with any kind of object.

Until recently, to be found guilty of rape, there would have to be two things that needed to be proven in court: violence and “carnal knowledge” i.e sexual intercourse.

Following a major overhaul to rape laws in 2018, the need to proof violence was replaced with the need to prove that consent was given. Prison sentences were also boosted from six to twelve years.

2. What is consent?

Consent is the permission you give for something to happen or when you clearly express and agree to do something. It can be taken away at any point, even if you initially said yes.

Remember: if you’re unsure, ask.

It is very important to note that the absence of the word “no” does not mean “yes.”

You can’t give consent if you’re asleep or unconscious; significantly drunk or affecting by drugs; too young to consent or unable to because of your intellectual capacity; are intimidated or held against your will.

According to Maltese law, consent also factors in “surrounding circumstances” and the state of the person giving consent at the time. It includes things like their emotional and psychological state and other considerations.

This means that if you’re suffering from trauma, a mental illness, or anything that affects your ability to make a sound decision, you may be unable to consent.

The replacement of the need to prove that consent was given instead of proving violence at the time of the act is good news.

Having to prove violence to convict a person meant a lot of rapes failed to be punished, because, for example, if violence occurred after sexual intercourse had begun, it wouldn’t be considered rape.

It previously meant that it could be argued that a victim who was drunk at the time of the act but gave their consent wasn’t raped.

The need to prove violence also means courts had to go through the arduous and often arbitrary task of having to determine a timeline of injuries.

But consent opens its own can of worms. This means that unfortunately, it is the victim’s word against the accused.

This was seen in a case in 2019, where a 21-year-old Gozitan student was released on bail after being charged with raping a woman. The student was charged three years after the incident. The defence presented chats that showed the victim saying “how much fun she had” and also continued conversation between the two until May 2018. The student was granted bail while the allegedly raped woman was given a protection order.

In another case that closed last year, an 18-year-old co-worker was cleared of raping a Miss Universe Contestant in 2016 after the victim admitted she was drunk at the time.

3. What if you were drugged?

Have you ever been to a party, blacked out and woke up with a sinking feeling that you were taken advantage of?

Drug-facilitated sexual assault is a growing problem across the world and is sorely underestimated. Drugs or alcohol are often used to make rape or sexual assault easier, making survivors unable or less able to defend themselves against unwanted sexual conduct or remember what happened. 

Of course, not knowing the exact circumstances of the rape makes it harder to report, but it is definitely a crime.

4. What if you were drunk?

The scene of sexual assaults in often in places where booze is present: Paceville clubs, bars around the island and even social events in people’s homes. Being drunk isn’t an excuse to take advantage of someone.

If alcohol is affecting your ability to give permission, then someone exploiting that weakness to sexually exploit you to have intercourse is rape.

5. What if your spouse makes you have sex when you don’t want to?

Many people in Malta believe that it is their marital right to have sex with their partner. Married or not, consent is still needed to have sex, because if one party doesn’t consent, then it can be considered rape.

Also, you can say yes to having sex and change your mind half-way through and the other party should respect your choice and stop. If they don’t then it’s rape.

6. What is sexual harassment?

Malta’s laws cover sexual harassment in a big way, under article 251A of the criminal code.

If you’ve ever been called sexual names by someone driving by, if someone ever pressured you into sexual favours, were touched without giving permission, if someone sends you unsolicited comments or explicit content on Facebook, it’s all illegal and covered in this law.

A person found guilty of this can land a six-month to two-year prison sentence or a fine of €5,000 to €10,000.

7. Is cat-calling a crime?

Yes. Unfortunately, it has become so normalised that most people don’t think twice about it. If you ever get sneering sexual remarks on the bus, walking home or anywhere, it’s against the law. 

It is unclear how many people have been slapped with a prison sentence or fine under this sub-article.

8. What if someone sends you nudes that you didn’t want?

Think twice before sending a surprise nude: unsolicited dick pics or sexual images of any kind is a crime.That being said, if you sent a sexy picture to your significant other, and they shared it without your consent, thy can be charged for revenge porn.

9. What if your boss asks you for sexual favours for a promotion?

Workplace harassment is a real issue – hundreds of people told Lovin Malta that they were sexually exploited at their jobs. If your boss is conditioning that promotion, raise or opportunity on fulfilling sexual favours, then it is sexual harassment and you can file a report against them.

It doesn’t have to be your boss or superior to be sexual harassment. If your colleague pressures you to have sex, this is workplace harassment and is illegal.

10. What if someone harasses you online?

Ever got unwanted sexual comments on a Facebook comment thread or in your direct messages? Well, unwanted sexual remarks online is sexual harassment and is indeed a crime. You need to produce a screenshot and all details around the incident to report to the police.

11. What if your ex leaks your nudes?

Revenge porn is also illegal under the laws of sexual harassment. Even if you willingly sent or received a sexy photo, sharing them for malicious reasons without the permission of the author is a crime.

While these laws are important, there are still major hurdles in face of justice for victims.

In over 11 years, there were just under 1,300 cases of sexual offences reported to the police. But this hardly paints an accurate picture when the overwhelming majority fail to reach authorities.

Reasons for not reporting are multi-faceted.

In Lovin Malta’s survey of nearly 1,000 people, just 5% said they reported an incident to police, saying they felt it was useless, while others didn’t want to make a big deal out of it or simply didn’t feel it merited a report. Survivors may also choose not to report out of fear of retaliation, with the perpetrator often threatening them to keep quiet and internalise it. 

In fact, research has found that a quarter of offenders are likely to retaliate against victims if they were contacted by police about the crimes.

The circumstances get murkier if the offender is a person close to the victim, possibly forcing the survivor to internalise the acts, accept their fate as a victim and endure psychological trauma.

Still, the fact remains that these are serious crimes that can be taken to court. As a nation, we must work to destigmatise sexual assault sufferers, provide a safe space to share their stories, report to police and crackdown on perpetrators.

However, time-barring can be the most significant hurdle in front of survivors. 

Because sexual assault crimes are time-barred by 10 years, victims only have that time to face their aggressors and bring them to justice. Victims deserve better than that. They deserve a clear advantage over their abuser and not the other way around.

If you have suffered sexual assault, whether it was recently or not, and would like free, professional emotional support or legal assistance, get in touch with Victim Support Malta on + 356 2122 8333 or send an email on [email protected].

Everyone can be a victim of sexual assault. Share this with everyone you care about 

READ NEXT: What Could The Schengen Area Look Like Post-Pandemic And How Will It Affect Malta?

Sam is an over-caffeinated artist fighting for a cooler and freer world, one article, song or impromptu protest at a time. Hit her up with thought-provoking ideas or dreams at [email protected] or @princess.wonderful on Instagram.

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