The EU Commission proposes a directive with a comprehensive and modern understanding of ‘consent’ to combat violence against women and domestic violence

11-03-2022

Ruhama Yilma Abebe

Women’s Rights Researcher, 

Global Human Rights Defence.

On International Women’s Day (March 8), the European Commission proposed a Directive aimed at combating violence against women and domestic violence throughout the European Union. In addition to combating physical violence, this proposal also specifically addresses cyber violence against women. 

This proposed directive establishes minimum rules regarding the definition of criminal offences and penalties in the areas of sexual exploitation of women and children, the rights of victims of all forms of violence against women or domestic violence (criminal proceedings), victims’ protection and support. It also provides for the definition of crimes such as: violence against women, domestic violence, victim, cyber violence, and sexual harassment at work. The proposal aims at making the current EU legal instruments more effective, filling the gaps, and aligning EU law with established international standards regarding the aforementioned crimes. 

The proposed directive is especially relevant in protecting women from rape in that it provides for a modern and comprehensive understanding of consent. Article 5 of the proposed directive defines non-consensual act as: 

“an act performed without the woman’s consent given voluntarily or where the woman is unable to form a free will due to her physical or mental condition, thereby exploiting her incapacity to form a free will, such as in a state of unconsciousness, intoxication, sleep, illness, bodily injury or disability”

This definition of rape is highly relevant as despite the criminalization of rape in EU countries, 18 member states still consider the use of force or threats as a precondition to punish the crime. 

Additionally, it also lays down two basic principles regarding consent. The first principle is the fact that consent can be withdrawn at any moment during the act. This principle makes sure that consent given at the beginning of an act (if withdrawn later) cannot serve as an excuse or defence for rape. The second principle is also as important as the first one. It indicates that silence, verbal or physical non-resistance or past sexual conduct cannot by itself or exclusively be utilized to refute the lack of consent. 

Sources and further reading:

Euronews (2022, March 8), “EU plans to introduce same laws on violence against women across all member states”, Retrieved on March 10, 2022 from https://www.euronews.com/2022/03/08/eu-plans-to-introduce-same-laws-on-violence-against-women-across-all-member-states 

European Commission (2022, March 08), “Proposal for a Directive of The European Parliament and of the Council on combating violence against women and domestic violence”, Retrieved on March 10, 2022 from https://ec.europa.eu/info/sites/default/files/aid_development_cooperation_fundamental_rights/com_2022_105_1_en.pdf 

European Commission (2022, March 8), “International Women’s Day 2022: Commission proposes EU-wide rules to combat violence against women and domestic violence”, Retrieved on March 10, 2022 from https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1533