EU misses historic opportunity to include rape based on lack of consent among EU crimes

Strasbourg, from our correspondent – There is an agreement but with a downshift. Negotiators from the EU Parliament and Council failed today (Feb. 6) to sign a historic deal to harmonize at the EU level a definition of rape based on the lack of consent. After five rounds of negotiations, there is an agreement, but without including rape, defined based of lack of consent, among crimes in the EU. It is from Strasbourg, where the European Parliament Plenary is underway, that negotiators announced that they reached a political understanding on the proposal for a directive on combating gender-based violence, put forward by the European Commission on Mar. 8, 2022, with the idea of criminalizing several crimes, including female genital mutilation, online violence, and rape, defined in Article 5 as “any compulsion to a non-consensual sexual act.”

Deal!

We have an agreement on combating #ViolenceAgainstWomen and domestic violence.

For the first time ever, we criminalise wide-spread forms of #cyberviolence, such as non-consensual sharing of intimate images.

Thank you @FitzgeraldFrncs @EvinIncir and @EU2024BE pic.twitter.com/PNPrY7aYNc

– Věra Jourová (@VeraJourova) February 6, 2024

At present, member states do not have a shared definition of rape based on the absence of consent, although they consider it a crime inscribed in the Criminal Code, the definition of which is not the same in all countries. The agreement reached between co-legislators stipulates does not mention rape among EU crimes but mentions it in Article 36, which regards prevention whereby Member states only commit “to raising awareness that non-consensual sex is considered a crime,” explains a note from the European Parliament.  The two rapporteurs for the European Parliament – Swedish MEP Evin Incir (S&D) and Irish MEP Frances Fitzgerald (EPP) — expressed “Great disappointment” at a brief press conference in Strasbourg organized immediately after the announcement of the agreement. The Commission’s proposal envisaged the offense, and Parliament confirmed it. However, it did not pass due to deadlock in the EU Council, where it was impossible to reach the necessary qualified majority. “13 member states,” including Italy, supported the proposal, the rapporteurs said, as in negotiations they pushed for an opening through Article 36 toward the concept of prevention of the crime.

“We hope it will lead to the development of a culture based on consensus,” they said, confiding that thanks to the “review clause requiring the Commission to evaluate the implementation of the directive within the next 5 years,” something might change. France and Germany, like Austria and the Netherlands, are the big countries contrary to such a specific European definition of rape, complaining that there is no legal basis for these new rules.

The EU estimates that one in three women have experienced physical or sexual violence in their lifetime, mostly perpetrated by intimate partners, and 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 significant increase in physical and emotional violence against women. Since the Internet and social media have taken over our lives, online violence has also become a rising trend. Despite the downshifted agreement, it is still a step forward in EU legislation. The directive introduces EU-wide rules on the criminalization of certain forms of gender-based violence and improved access to justice, protection, and prevention. It will include a longer list of aggravating circumstances for crimes, including crimes against public figures, journalists, or human rights defenders; intent to punish victims because of their sexual orientation, gender, color, religion, social origin, or political beliefs; and intent to preserve or restore “honor.” Rules against female genital mutilation and specific rules for online crimes, including dissemination of intimate material and cyberflashing, will be introduced. The deal is provisional until formally adopted by both institutions separately.