The Swedish Presidency of the Council of the EU will present a proposal for a common position (‘general approach’) on the directive to combat violence against women to the ambassadors of the EU Member States (Coreper II) on Friday 26 May. The text proposes, among other things, to remove rape from the list of gender-based violence to be criminalised and to leave more room for manoeuvre to Member States.
Rape removed from the directive
Thus, one of the central differences from the European Commission’s original proposal for a directive is the removal of rape from the list of crimes to be criminalised throughout the EU.
A proposal that may not sit well with the European Parliament, with MEPs pointing out that legislation to combat violence against women without rape would lose considerable force. However, a majority of Member States are opposed to this, wanting legislation on the subject to remain exclusively a national competence (see EUROPE 13173/1).
It should be noted that, contrary to the proposals of the European Parliament rapporteurs on the dossier, the Swedish Presidency does not intend, as it stands, to extend the crimes covered by the directive to forced sterilisation or the purchase of sexual services (see EUROPE 13131/18).
Cyber-violence
With regard to cyber-violence, the issue of national competences is less debatable, as “computer-related crimes” are one of the crimes listed in Article 83(1) of the TFEU.
However, the Swedish Presidency of the EU Council suggests that online stalking, cyberstalking and the non-consensual sharing of intimate images online should only be made mandatory crimes “where such conduct is likely to cause serious harm”. Similarly, it leaves open the possibility for EU countries to criminalise virtual incitement to hatred only in cases where it is “carried out in a manner likely to disturb public order or [is] threatening, abusive or insulting”.
Sanctions
Furthermore, the Swedish text proposes to reduce the minimum penalties put forward by the Commission for each of the infringements contained in the directive. It also intends to leave the definition of limitation periods to the discretion of the Member States.
As for aggravating circumstances, it removes from the list the fact of filming, photographing or recording the offence as well as the fact that the offence was committed by leading the victim to consume alcohol or drugs.
Protection of victims
Finally, the text on the table of the EU Council significantly modifies the protections provided to victims, leaving various aspects to the discretion of Member States or nuancing them. For example, it removes details of the criteria to be taken into account when calculating compensation for victims or considers that a victim’s private life can be raised in court when it is “relevant and necessary”.
If the Member States’ ambassadors give the green light, the text is expected to be presented to EU ministers at the EU ‘Justice and Home Affairs’ Council in June.
To see the text: https://aeur.eu/f/70b (Original version in French by Hélène Seynaeve)