“Only ‘yes’ means ‘yes'”: the European Parliament approves a resolution calling for a common law on rape

From our correspondent in Strasbourg – A legislative proposal establishing a definition of the offence of rape common to the entire European Union and based on
freely given, informed, and revocable consent: This is the request made to the European Commission in a resolution approved today (28 April) by the European Parliament during the current plenary session in Strasbourg. The text, which had already been adopted by the LIBE (Civil Liberties) and FEMM (Women’s Rights and Gender Equality) committees on 25 February, received final approval from the plenary with 447 votes in favour, 160 against, and 43 abstentions. The ball is now in the EU Commission’s court, which must decide whether to act on the European Parliament’s non-binding call.

A new principle for a new law: “only yes means yes”

In most EU Member States, the law stipulates that the offence of rape is committed only in cases where there is evidence of threats or physical violence suffered by the victim. What the resolution proposes, however, is to introduce legislation, applicable to all Member States, that uses a criterion capable of covering a wider range of cases of sexual violence: that of the absence of explicit, free, informed, and revocable consent at any time. Adopting this principle—which feminist movements have rebranded as the “only yes means yes” formula—would extend the scope of prosecutable cases to include all situations where there is no evidence of physical violence, but where the absence of valid consent is evident. This concept was explained by the Polish MEP and co-rapporteur of the text, Joanna Scheuring-Wielgus (S&D), who stated that “women who are victims of rape do not always scream, because they may have other types of reaction such as freezing, submission, or fainting.” “The principle we want to establish,” she concluded, “is that none of these behaviours can be considered a form of consent.” 

The other signatory to the motion is the Swedish MEP Evin Incir (S&D), who emphasised that the principle of the absence of consent is applied in many other areas of criminal law. “If someone takes your money without consent,” she stated during the debate in the chamber, “it is clearly an unlawful act, just as if someone enters your home without authorisation and takes something.” “In these and other cases, the law is simple and clear: without consent, we are dealing with a violation. So why is this clarity lacking when it comes to a person’s body?”, she concluded, before reiterating the need to remedy “what is not merely a legal vacuum, but a genuine moral failure” by following the example “of the laws adopted since 2023 in France, Finland,Luxembourg, and the Netherlands.” 

The Scandinavian MEP also responded to the objection that there is no legal basis authorising the Commission to legislate in this area. “The Istanbul Convention on preventing and combating violence against women, which the EU ratified in 2023, requires parties to define rape on the basis of the absence of freely given consent,” explained Incir, “and
Article 83(1) of the Treaty on the Functioning of the European Union

(TFEU, ed.) gives the Commission the authority to act against sexual exploitation: if rape is not exploitation, what is it?” 

While the legal hurdle appears surmountable, it remains to be seen what stance the Berlaymont building will take on Parliament’s request. In light of the comments made during yesterday’s debate by the Commissioner for Equality, Hadja Lahbib, the intention appears to be to heed the call. “The message you have sent with this resolution is clear,” she said, addressing MEPs, “and the Commission stands with you on this.” To this end, the Belgian politician announced the launch of “an in-depth mapping exercise to identify future legislative actions so that sex without consent is defined as rape throughout the EU.”

Other proposals: from gender-based violence as an EU offence to a call on states that do not comply with consent standards (including Italy)

In addition to a new definition of the offence of rape, the resolution adopted today calls on the Commission to take further steps regarding EU legislation on sexual offences. In particular, it highlights the call to include gender-based violence in the list of EU offences, as defined in the aforementioned Article 83(1) of the TFEU. 

As stated in the official press release issued by the European Parliament following the vote, this initiative aims to develop a more “victim-centred” approach to sexual offences. Other proposals contained in the text move in the same direction, such as “immediate medical care, sexual and reproductive healthcare, access to safe and legal abortion, trauma care, psychological and legal support, and mandatory, regular, and targeted training for professionals who may come into contact with rape victims.” Scheuring focused on this last point in particular during the debate: “Only one in seven women reports the violence they have suffered because they fear they will not be taken seriously,” she explained, before arguing that “precisely for this reason, better training for police and judicial staff is needed.” 

Finally, alongside the calls directed at the European Commission, the document adopted today also contains a request addressed to Member States whose definition of rape is still based on the concepts of violence and physical force. “Since only 14 out of 27 countries have legislation based on the absence of consent,” explained Encir during a press conference in the late afternoon, “the European Parliament’s call to the other Member States is to align themselves with the ‘only yes means yes’ principle”, with a political appeal that also directly concerns Italy. Since November last year, a bill aimed at redefining the offence of rape on the basis of the absence of consent has been stalled in Parliament due to internal reservations within the majority supporting Prime Minister Giorgia Meloni.