Rape as ‘sex without consent’ could be von der Leyen’s legacy; held back by ‘her’ Germany

Brussels – From the directive on women on boards of directors to the historic EU joining of the Istanbul Convention and the equal pay salary transparency directive. The Ursula von der Leyen-led European Commission – the first in the history of the EU led by a woman – has helped unlock important legislative dossiers over the past five years to move the Union forward as a united bloc not only on equality but also against domestic and gender-based violence. Much remains to be done with only a few months to go before the end of the legislative term, but one last piece is likely never to see the light of day and slip directly to the next legislature. The proposed directive on combating gender-based violence proposed by the European Commission on March 8, 2022, aims to criminalize several crimes, including female genital mutilation, online violence, and rape, defined in Article 5 as ‘any coercion into a non-consensual sexual act:’ therefore, harmonizing the definition of rape based on the lack of consent.

Negotiators from Parliament and the Council met three times so far — in July, November, and December —  to try to reach an agreement on the European Commission’s proposal. Parliamentary sources tell Eunews that the next meeting could be in late January or early February. But we are still far from an agreement, particularly on the controversial issue of rape.

France and Germany are among the countries slowing down negotiations, opposing such a specific European definition of rape, complaining that there is no legal basis for these new rules. The member states, in their June negotiating position (and to Italy’s regret as well) removed any reference to the principle of consent to define rape precisely because of the opposition also of Berlin and Paris, along with Austria and the Netherlands. In its mandate – co-signed by MEPs Frances Fitzgerald (Ireland, EPP) and Evin Incir (Sweden, S&D) –  the European Parliament broadened the definition of non-consensual acts, stressing that consent can be withdrawn at any time and added situations in which a victim is unable to secure his or her freedom to decide due to fear, intimidation, disability, and other vulnerable circumstances.

The EU estimates that one in three women have experienced physical or sexual violence in their lifetime, mostly perpetrated by intimate partners, while one in two women have experienced sexual harassment. During the COVID-19 pandemic, which forced months and years of restrictions on people’s free movement by making them spend more time at home, there was a major increase in physical and emotional violence against women. And since the Internet and social media took over our lives, online violence has also become a rising trend.

Von der Leyen last mentioned the urgency of reaching an agreement on the directive in September, during the annual State of the Union Address: “There can be no equality without freedom from violence,” she said, spelling out that a “fundamental” principle such as “no means no” must be turned into European law. At the European level, most EU member states, including Italy, have a legal definition of rape that lacks any reference to the principle of consent.