EU countries divided over the inclusion of rape in violence against women directive

EU member states are still divided on the inclusion of rape as an EU-level crime in the proposed directive on combating violence against women ahead of the third trilogue set to take place on Tuesday (14 November).

Two out of ten women in the EU have experienced physical and or sexual violence by a partner or a friend, with three out of ten having experienced it at the hands of a relative or family member. At least two women are killed every day by an intimate partner or a family member.

Gender-based violence also comes with an estimated annual societal cost of €290 million at the EU level.

Despite the worrying figures, there is still no EU-wide legislation to address the issue. On 8 March 2022, the Commission proposed to fill this legislative vacuum with the directive on combating violence against women and domestic violence.

The Commission proposed unifying the rules across the EU criminalising a range of offences including female genital mutilation, cyber violence and rape.

The latter divided the Parliament and Council. In the member states’ position, reached in June 2023, countries scrapped Article 5 of the Commission’s proposal, which said that a non-consensual sex act is a criminal offence.

In the following month, Parliament set their position in line with the Commission’s proposal regarding the inclusion of rape, with co-rapporteurs making it clear that Parliament will not be satisfied with a directive that excludes rape.

“One of the biggest challenges we have is to make the majority of member states understand that we need a consent-based rape paragraph,” said Swedish MEP Evin Incir from S&D, a co-rapporteur of the file for the Civil Liberties Committee (LIBE), during a press briefing on 26 October.

“Not only a rape paragraph, but a consent-based rape paragraph that only a yes is a yes,” she stressed.

Therefore, two trilogues down, the agreement is not in sight and the Council is divided on the inclusion of rape based on the lack of consent to the file. Some countries support the inclusion while others remain loyal to the initial majority’s position, basing it on the Council Legal Service advice.

Why are countries against it?

Each of the three EU institutions developed their legal opinions, with only the Council expressing concerns that including the criminalisation of non-consensual sex acts would overreach EU legal competencies.

Rape is not included in the list of Euro-crimes, offences listed in Article 83 of the Treaty on the Functioning of the European Union (TFEU), for which the EU has legal competence, such as corruption, terrorism or sexual exploitation.

For the majority of countries that formed the initial Council’s position rape does not legally fall within the scope of sexual exploitation.

“France is not opposed to the idea but believes there is no legal basis for it. Criminal law is a competence of the Member States, not of the EU, except in the case of Euro-crimes,” an EU source close to the matter explained to Euractiv.

This is the stance taken by the Czech Republic and Poland.

“We share the opinion of the Council Legal Service as regards the lack of legal basis,” the Czech spokesperson for the Permanent Representation to the EU told Euractiv in a written answer.

In the meantime, Poland’s spokesperson for the Permanent Representation to the EU said that “the Euro-crime of ‘sexual exploitation of women and children’, based on exploitation, does not cover the crime of rape, of which sexual violence is an essential element”.

“The definition of rape proposed in Article 5 would construct the concept of this crime in a form that would create procedural, interpretative and evidentiary difficulties and, consequently, would lead to lowering of the level of protection guaranteed to victims by the Polish Criminal Code,” the spokesperson added.

France also fears that if rape is incorporated into European law, countries such as Hungary will use it to have the entire directive overturned by the Court of Justice of the European Union (CJEU), on the grounds that the EU does not have jurisdiction.

France is also at odds with the definition of rape proposed by the European Parliament and the Commission, which considers sexual intercourse without consent to be rape.

In France, rape is defined as a sexual act committed against a person under threat, coercion, surprise or violence.

However, integrating the notion of consent into the final text would be “less telling” and “less protective” for victims, argued Bérangère Couillard, the French Minister for Gender Equality and Fight against discrimination, at a meeting on 17 October with actors from civil society and institutions to discuss violence against women.

Germany is also against the inclusion of rape in the directive, but Germany’s Permanent Representation to the EU did not respond to Euractiv’s inquiry about the reasoning behind this by the time of publication.

For the rapporteurs, as well as for the Commission, the countries’ position is not convincing enough.

“I know that there are concerns about the interpretation of the legal basis. However, we have already used the exact same legal basis to criminalise non-consensual sexual activities with children, so there is no legal argument against using it now,” Helena Dalli, Commissioner for Equality, said on 9 October during the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) in Luxembourg.

It is not convincing for civil society either.

“Both governments in Germany and France have supposedly placed the cause of women’s rights and gender equality at the top of their political agenda. They must stop being hypocritical,” said Irene Rosales, Policy Officer at the European Women’s Lobby told Euractiv.

Over 70 legal experts, lawyers and jurists across the EU have signed the European Women’s Lobby’s open letter providing the legal arguments that refute the Member States’ position.

“Legal arguments are being used as an excuse to hide their lack of political ambition,” Rosales said.

The German Women Lawyers Association (djb), one of the European Women Lawyers Association (EWLA)’s organisational members, in its legal opinion has also argued in favour of including rape in the Directive, underlining that the harmonisation of the crimes of rape and female genital mutilation is covered by the provision on “sexual exploitation of women and children” in article 83 of the TFEU.

At the moment, 16 member states have amended their national legislation to address lack of consent as the main constituent element of the crime, while other countries haven’t included it yet.

“Some who have consent in their legislation are still opposing it at a European directive level, which is really hard to understand,” Irish Christian democrat MEP Frances Fitzgerald, co-rapporteur of the file for the Women’s Rights Committee (FEMM) said.

“I guess one of their explanations is: ‘We don’t want the EU overreaching into our complex area of dealing with rape’ because many member states have found it a difficult issue to legislate for and so they’re kind of holding back further EU law in this area, which we believe is wrong,” she stressed.

Why are others for the inclusion of rape?

While the majority of countries followed the Council’s legal advice, a number of countries are supporting the inclusion of rape based on the lack of consent.

Croatia is one of them. “Croatia was also among those who supported the initially proposed Articles 5 (rape) and 6 (female genital mutilation) […],” a spokesperson for Croatia’s Permanent Representation to the EU told Euractiv.

Italy is also in favour of including rape in the law, “because a directive against gender-based violence that does not contain rape would not make sense,” a spokesperson for Italy’s Permanent Representation to the EU told Euractiv.

For Italy, the concept of exploitation of women referred to in the legal basis includes rape. “We would have liked a more ambitious general approach but we supported it anyway because it is always better to have a European directive than not to have it (and we have solid national legislation on rape),” it was added.

A spokesperson for Lithuania’s Permanent Representation to the EU said that there is no doubt that one of the forms of violence against women is crimes of a sexual nature, and the member states cannot leave this issue sidelined.

While Lithuania has analysed the legal basis of Article 5 provided by the Council Legal Service, “Lithuania believes that national response to this type of violence could greatly benefit from a unified EU position and the mechanism enabling to maintain the standard legal response across all member states,” they said in a written response to Euractiv.

Lithuania is one of the 11 countries  – Bulgaria, Czech Republic, Estonia, France, Hungary,  Italy, Latvia, Poland, Romania and Slovakia –  that, according to Rosales from the European Women’s Lobby, have definitions of rape that are based on force – not consent – as the main element of the crime. Additionally, marital rape or rape that happens within relationships is not legally addressed.

Therefore “this model  [“only yes means yes”] helps people understand that sex without freely given will and without mutuality is not sex but rape,” Rosales stressed.

During October’s EPSCO, Greece and Belgium also expressed their support for including rape in the directive. Several member states, such as Sweden, Ireland and Portugal recently decided to change their position in favour of including rape in the file.

On 14 November, the next round of negotiations between the three co-legislators will take place and, given the current difficulties, a following meeting has already been scheduled for 12 December.

If a compromise cannot be found until the European elections in June 2024, when Belgium will be chairing the Council’s presidency, the second half of 2024 will fall under the leadership of Hungary, followed by Poland in 2025.

*Reporting on France from Clara Bauer-Babef

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