NO to an EU Directive without rape

Rape was cancelled from the EU Directive on violence against women (VAW), according to a political agreement reached on 6 February. This is due to a decision of the European Council, in which governments are represented, and whose agreement is necessary to pass EU legislation. The current text – without Article 5 on rape – is at odds with the Istanbul Council of Europe Convention, defining sexual violence as engaging in non-consensual penetration, or engaging in other non-consensual acts of a sexual nature with a person, and specifying that consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances. Such a provision emphasizes the free will of a woman. Only yes is yes, and a woman can say no, in any moment and in the context of any personal relationship. It is the most progressive approach to rape, whilst in many national laws the crime is still defined as a behavior committed by means of violence or threat or surprise or abuse of authority. Such definitions imply that a woman is in fact obliged to demonstrate in Court that she resisted at the risk of being killed or bear even more serious physical damages. The deletion of the definition of rape based on the lack of consent, makes the Directive not only incomplete but also regressive, because it seems to ignore the most advanced outcome stemming from the Istanbul Convention. It is a step backward in the difficult process towards homogenization of the legal notion of rape and relevant judicial experiences. Consequently, women will continue to suffer different and often ineffective levels of protection within the EU.

            The deletion of rape is the result of the positions by several governments, arguing that there is no legal basis in the Treaty to pass EU legislation on this subject. It is important however to underline that a few governments have recently opposed the EU accession to Istanbul Convention – approved only in June 2023 – because of a latent hostility towards its advanced content. On the VAW Directive, also France and Germany supported the idea of the lack of legal basis to keep violence against women within national competence. However, the legal argument, based on a restrictive interpretation of Article 83 of the Treaty, is not convincing. That provision includes sexual exploitation in the list of EU crimes, and thus the question is: can be rape be considered a form of sexual exploitation? The trend currently emerging, including within the same EU bodies, is towards a significant enlargement of the legal notion of exploitation. For example, in the context of the revision of the Directive on trafficking in human beings, the EU Parliament (with the agreement of the Council) has recently reached agreement about including, among the purpose of exploitation, new illicit behaviors such as forced marriage. The latter does not require to prove a gain (economic gain or other types of advantages), as in the case of exploitation of prostitution, but only the lack of free will of the spouse. Similarly, rape implies the lack of consent to a sexual act. Concerning forced marriage, the concept of sexual exploitation has been enlarged, implying an instrumental use of a person to achieve a result pertaining to the purposes of the perpetrator, and not of the instrumentalized person. According to this broad interpretation, EU bodies are competent to pass legislation on sexual violence as a form of sexual exploitation.

            Do civil society and feminist movements have any interests in a Directive that has been “mutilated” in one of its essential parts? States are already obliged to comply with the Istanbul Convention because of national ratifications and EU accession. Therefore, instead of making the EU a regressive institution by passing a bad Directive, the EU Parliament should rather oppose a decision imposed by the Council and postpone the discussion of the whole text including rape, after the EU Parliament election. EU governments are currently influenced by their electoral interests and are eager to present themselves as those defending national competences, in a time of anti-EU latent or explicit positions supported by right and far-right parties. Therefore, this is not the best time to affirm EU prerogatives. Although it is probable that the majority in the new Parliament will be more right oriented than the current one, it is also true issues regarding women’s rights such as rape and feminicide cannot be further ignored by any component of the political spectrum.