A disappointing coalition of France, Germany and the Netherlands with the conservatives in the EU on the consent-based definition of rape

31-01-2024

Idil Igdir

Women’s Rights Researcher, 

Global Human Rights Defence. 

As the European Commission took a landmark step by proposing the first-ever directive on combating violence against women and domestic violence to mark International Women's Rights Day on March 8th, 2022, some EU Member States united behind a historically disappointing coalition to block recognition of a consent-based definition of rape within the EU. 

The controversy arose within the Member States when Article 5 of the proposed directive set out to criminalise rape based on the absence of consent and not on the use of force, coercion, threat, violence or surprise. This means that a perpetrator can be condemned for rape if there is simply no consent given by the victim. To put it bluntly, sex without consent is tantamount to rape. This definition would have been enforceable throughout the EU if it had not been resisted by the coalition of France, Germany and the Netherlands, along with Hungary and Poland (Peseckyte, 2023). 

Even more sadly, France and Germany have the highest rates of rape and sexual violence among EU Member States. According to statistics for 2021, over 31,000 cases of rape against women victims were reported in France, with a further 3,937 cases of rape against men victims (Statista, 2023). In fact, France reported the highest number of rape cases among European countries in 2021, while Germany reported the second-highest figure with 9,797 women and 761 men (Statista, 2023).

This statistic was further corroborated by Isabelle Lonvis-Rome, the French Minister of Gender Equality in 2023, who announced that every year 94,000 women in France become victims of rape or attempted rape (Schuster, 2023). Despite the soaring gravity and prevalence of rape and attempted rape in the country, French President Emmanual Macron remains unwilling to accept the definition of rape based on consent. 

Disappointingly, in 11 Member States, instead of focusing on the lack of consent, the use of force or threat is still recognised as an essential element of rape (European Parliament, 2024). A closer look also reveals that five States parties to the Istanbul Convention - Estonia, France, Italy, Poland and Romania - have not taken any steps to include consent in their criminal definition of rape. As for the six EU Member States that have not ratified the Istanbul Convention (Bulgaria, Hungary, Latvia, Lithuania, Slovakia and the Czech Republic), they have not amended their legislation either (European Parliament, 2024). So while citizens and MEPs are calling for recognition of "only yes means yes", some Member States are continuing to respond basically with "not all no's are no's".

As regards the reason for this frustrating gridlock, numerous Member States, including France, Poland and the Czech Republic, pointed to the famous Article 83 of the Treaty on the Functioning of the European Union (TFEU), stating that rape is not included among the list of crimes known as "Euro-crimes". This Article constitutes the competence to adopt directives on substantive criminal law for the areas of crime listed in detail in its second sentence. The current legal dispute therefore revolves around whether "sexual exploitation" included in the list should be given a narrow definition or whether it can be read in a way that includes rape. 

On this matter, the difference between "sexual exploitation" and "trafficking in human beings" is a source of great confusion for many people. For a long time, the EU also considered the sexual exploitation of women to be a component of human trafficking, defining the crime as "trafficking in human beings, in particular the exploitation of women and the sexual exploitation of children" following the Tampere European Council of 15 and 16 October 1999 (ECRE, 2000). Fortunately, this perennial ambiguity was later clarified by the Lisbon Treaty in 2009. The confusion has thus been resolved so that sexual exploitation is no longer considered solely as a form of trafficking in human beings. This also confirms that there is an independent and broader understanding of sexual exploitation in the EU. In this regard, even Article 2(3) of Directive 2011/36/EU (Anti-Trafficking Directive) states that “exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation” (European Commission, n.d). 

Finally, to further clarify the murky clouds surrounding the term 'sexual exploitation', it is worth bearing in mind that the EU has already used the same legal basis to criminalise non-consensual sexual activity with children in the 2011 EU Directive on combating the sexual abuse and sexual exploitation of children and child pornography (the Sexual Exploitation Directive), as confirmed by Commissioner of Equality Helena Dalli on October 9, 2023, during the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) in Luxembourg (Iraola, 2023). 

• Explanation 

Within the EU, a directive is considered to be secondary law, as opposed to primary law such as the Treaties. This means that when a directive is adopted by the EU institutions, it carries with it a positive obligation for the Member States to transpose it into their national legislation so that it becomes a law. A directive therefore sets a goal that all Member States must achieve. In other words, under Article 288 of the Treaty on the Functioning of the European Union, a directive is binding on the Member States to which it is addressed as regards the result to be achieved but leaves the national authorities the power to choose the form and means of achieving that result.

Sources and Further reading : 

ECRE. (2000, June). The ECRE Tampere Dossier. ECRE. Retrieved January 30, 2024, from https://ecre.org/wp-content/uploads/2016/07/The-ECRE-Tampere-Dossier_June-2000.pdf

European Commission. (n.d). Exploitation. Retrieved January 30, 2024, from https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/exploitation_en

European Parliament (2024, January). Definitions of rape in the legislation of EU Member States Retrieved January 30, 2024, from  https://www.europarl.europa.eu/RegData/etudes/IDAN/2024/757618/EPRS_IDA(2024)757618_EN.pdf

Iraola M. (2023, November 15). Health Brief: One week in the world of health. Euroactiv. Retrieved January 30, 2024, from https://www.euractiv.com/section/health-consumers/news/one-week-in-the-world-of-health/

Le Monde. (2023, November 25). Thousands participate in protests across France to condemn violence against women. Le Monde. Retrieved January 30, 2024, from https://www.lemonde.fr/en/france/article/2023/11/25/thousands-participate-in-protests-across-france-to-condemn-violence-against-women_6288659_7.html

Peseckyte G. (2023, November 13). EU countries divided over the inclusion of rape to violence against women directive. Euroactiv. Retrieved January 30, 2024, from   https://www.euractiv.com/section/health-consumers/news/eu-countries-divided-over-the-inclusion-of-rape-in-violence-against-women-directive/

Schuster M. (2023, May 5). Is France failing its rape victims?. France24. Retrieved January 30, 2024, from https://www.france24.com/en/tv-shows/france-in-focus/20230508-is-france-failing-its-rape-victims

Statista. (2023, June 20). Number of reported rape cases in selected European countries in 2021, by gender of victim. Statista. Retrieved January 30, 2024, from https://www.statista.com/statistics/1072770/number-of-rapes-in-europe/#:~:text=There%20were%2031%2C050%20rapes%20of,9%2C797%20females%20and%20761%20males.