After bitter discussions, negotiators from the European Parliament and the EU Council reached agreement on Tuesday 6 February on the first European legislation to combat violence against women and domestic violence.
However, due to the lack of consensus in the EU Council, a common European definition of rape based on the absence of consent, which has crystallised the debate over the last few months, does not feature in the negotiated text.
The directive, proposed by the European Commission in March 2022, focused on the prohibition of forced marriages, genital mutilation, sexual harassment and forced sterilisation. The main aim was to close existing legal loopholes, while the European Parliament sought to broaden the scope of the text to include other forms of violence such as the disclosure of intimate videos and online harassment. However, the most debated issue remains the definition of rape, based on the absence of consent, in Article 5 of the text. This approach, supported by the Commission and Parliament, was seen as crucial to protecting the sexual integrity of victims.
Twelve States, including France, Germany and Hungary, have lodged objections on legal grounds, creating a significant blockage in the EU Council.
This impasse has arisen despite the Istanbul Convention, a Council of Europe treaty to combat violence against women, which has been ratified by the EU but not yet by all Member States. The EU Council argues that the EU has no legal basis to legislate specifically on rape, considering this to be too broad an interpretation of Article 83 TFEU. This view has been challenged by MEPs and the Commission, who insist on the importance of including rape in the directive to ensure uniform protection for all women in the EU.
Nevertheless, the agreement introduces preventive measures against rape and raises awareness of consent. One step forward is the criminalisation of female genital mutilation and forced marriages at European level. In addition, the rules extend to online crimes, dealing specifically with the non-consensual release of intimate material and “cyberflashing”.
The text also includes an extended list of aggravating circumstances for offences, including violence based on sexual orientation, gender, race, religion, social origin or political convictions. It insists as well on improved procedures for the health and safety of victims, taking into account intersectional discrimination.
Co-rapporteur Evin Incir (S&D, Swedish), who stressed the importance of this agreement as a “catalyst for positive change”, expressed her disappointment at the lack of consensus on the inclusion of a definition of rape based on the absence of consent. She reaffirmed Parliament’s commitment to continuing the fight for women’s rights. A five-yearly report from the Commission on the revision of the rules is also planned, ensuring that this crucial legislation continues to evolve. (Original version in French by Nithya Paquiry)