On Wednesday 14 May, the European Parliamentary Research Service published a comparative analysis of national legislation on rape in the Member States of the European Union.
The main aim is to examine the legal evolution from a definition of rape based on violence or coercion to explicit recognition of the absence of consent as a constitutive element.
Initially, most European legislation was based on a coercive approach.
Definitions of rape were thus linked to physical violence, threats or the victim’s inability to resist.
However, this position gradually proved inadequate in the face of the reality of sexual violence. As the report points out, many victims adopt reactions such as shock or “tonic immobility”, which prevent them from putting up any resistance.
These psychological aspects, which are now more widely documented, make the requirement of physical resistance as proof of non-consent an obsolete criterion.
As a result, the 2014 Istanbul Convention, ratified by 22 Member States and the EU in 2023, imposed a definition of rape centred on freely given consent.
Since its entry into force, 16 Member States have revised their legislation to comply with it. France is currently examining a reform introducing the concept of consent into its penal code.
In Belgium, since 2022, the law specifies that consent must be freely given, can be withdrawn at any time and cannot be inferred from silence or lack of resistance. Rape is now listed as “a crime against the person”, rather than “a crime against family order and public morality”.
In Sweden and Spain, non-consent is central to the definition of rape, where only an “explicit yes” counts.
Nevertheless, in Austria and Germany, the “no means no” model, which is contested because it places responsibility on the victims, is still very prevalent.
Despite a certain European willingness to define rape in a harmonised way as resulting from non-consent, the EU had to give up on including such a provision in the 2024 directive on combating violence against women (see EUROPE 13431/33), due to a lack of unanimity in the Council.
It should be noted, however, that this directive does represent some progress, in that it requires Member States to carry out educational campaigns about consent.
The text also prohibits the use in court of sexist stereotypes or details of the victim’s private life to assess her consent.
As the document reports, the debate on the real effectiveness of a purely legal reform is still open.
Many feminist experts are sounding the alarm about the risk of “secondary victimisation”, leading to victims’ behaviour being overinterpreted at the expense of clearly holding perpetrators accountable.
But they all agree that unless the principle of consent is enshrined in law, the fight against rape will remain incomplete.
Ahead of a possible revision of the directive in June 2027, this parliamentary report is a reference for reopening the debate on a common European definition of rape, with the absence of consent as a sine qua non (see EUROPE 13532/8).
To read the report, go to https://aeur.eu/f/gv0 (Original version in French by Nithya Paquiry)