Austin’s speech act theory and similar contributions have made great contributions to the scientific analysis of human relationships and have also had a social impact on their improvement. However, they present limitations that have contributed to making the analysis of consent be anchored in verbal language with very negative consequences in the legislative developments, in the trials, and in the popular conception of the subject. First it was “no means no” and then “anything other than yes is no”. These slogans are well, as is the theory of speech acts, but they are clearly insufficient to analyze situations in which in spite of saying “yes” there is rape.
For years, the limitations of the speech act theory have been overcome at the scientific level with with the theory of communicative acts, which takes into account all interactions and all human languages, not just the verbal one. This theory allows to specify two indispensable requisites for a relationship to be based on consent. The first requisite is that the relationship is an illocutionary act, not a perlocutionary one, in which all participants enjoy a total sincerity from the others and reach a consensus absent of lies or hidden intentions. The second requirement is that the relationship is based on dialogic interactions and not on power interactions. Some power interactions come from the institutional power of some people over others, for example, a teacher and his student or an entrepreneur and his worker. But there can also be power interactions in the absence of institutional power, for example being five boys with only one girl in an entry port.
This does not necessarily mean that a relationship between a teacher and a student or between five boys and a girl should be condemned as a relationship of power if it is between adults. An option that some of the highest ranking universities have taken has been to prohibit and condemn all and any sexual relationships between a teacher and his student regardless of their ages. However, other highest ranking universities also taken another option, they allow those relationships while they are free, but once proven that there has been a relationship, the affirmation of the person in inferiority (in this case the student) that it has not been free leads to the conviction of the teacher.
In both different options the case of “La Manada” is clearly a violation according to these new scientific contributions as it is proven that there was a relationship and that the girl said it was not free: five boys who are alone with a girl already know that she can be pressured and they can only have any kind of sexual approach towards her if they are very sure that it is a totally free relationship and knowing that they are the ones who take the risk if they are wrong.