On 6 February 2024, the European Union Parliament and Council agreed on a directive on violence against women, due to be tabled in March 2022. The document will harmonize national laws on sexual harassment, female genital mutilation, sterilization, forced marriage and “revenge”. Pornography (release of sexual images with the intention of harming someone).
Article 5, which proposed defining rape without consent across Europe, was removed from the final draft due to lack of agreement. Nonetheless, the episode succeeded in opening up and broadening the debate on rape legislation and the concept of sexual consent in Europe.
The term ‘consent’ has been on everyone’s lips since the #MeToo movement in 2018, which sparked a wave of condemnation of perpetrators across social networks. Originating from the legal sphere, the exact meaning of this sexual and emotional term is the subject of much debate.
Article 5 Controversy
Voting for Article 5 would have meant changing the laws of every EU country that does not have a legal definition of consensual rape. These include France, Portugal, Italy, and Poland. Other countries, including Spain, Sweden, Finland, Slovenia, Denmark and the Netherlands, have already advanced legislation specifying the rule that “yes only means yes”.
The decision not to include Article 5 was very tenuous. A change in position by France or Germany would have been enough to force it to be adopted. What is the justification used for the omission? Rape is not a “Eurocrime” as defined in Article 83 of the Treaty on the Functioning of the European Union.
The European Union has ratified the Istanbul Convention, which sets out a consent-based definition of rape under Article 5. France and Germany have both signed the provisions, but Bulgaria, Hungary, Latvia, Lithuania, Slovakia and the Czech Republic have not.
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According to the EU Fundamental Rights Agency, more than half (55%) of women in the European Union have been sexually harassed since the age of 15, and one in three (33%) have experienced physical and/or sexual violence.
European Data Journalism Network, VoxEurop participation). Rape and sexual assault remain the least reported crimes to authorities. Ireland is a particularly notable example because, according to the Office for Central Statistics, only 5% of sexual assaults are reported.
Victims are now speaking out more. But in many cases, our systems still fail to support and manage them, particularly at court level.
Why should the concept of ‘consent’ be enshrined in law?
Frédérique Pollet-Rouye, a lawyer and activist specializing in gender discrimination and sexual violence, co-authored the article published in December 2023. world It was signed by female lawyers, writers and judges. A particularly explicit title is ‘Sexual Violence: ‘There is an urgent need to redefine rape in criminal law because the definition of rape in France presupposes implicit consent.’’ “Under current law, non-consensual sexual intercourse is not considered rape unless it can be proven that the defendant used physical force against the victim or frightened, threatened, or coerced the victim,” she explains.
Changes to the law will allow courts to deal with rapes that are not currently treated as rape. Another goal is to make it more difficult for convicted rapists to slip through the net.
The concept of consent therefore remains central to debate even in courts where the law focuses on coercion. The challenge lies in interpreting the term ‘consent’ and shaping it in a way that does not cause harm to the victim. Here’s what they have in common.
There is a debate even among feminists.
On January 29, 2024, in Germany, an open letter signed by more than 100 women from culture, business and politics was delivered to German Federal Minister of Justice Marco Buschmann. The signatories pleaded for the EU directive to be adopted in its original form.
However, in an article published in world In December 2023, feminist philosopher and essayist Manon Garcia disagreed and warned against changing French rape law to a version based on non-consent. -Agree,” she wrote.
In Spain, a country that has already passed a “yes only” law, feminist thinker Clara Serra diaryThe merits of such implicit definitions of rape have been challenged. In her view, the same reasoning should apply to women who explicitly say “yes,” given that women are unable to express their differences of opinion because of the dynamics of domination. Ultimately, this agreement may be a product of the same power dynamics.
Jana Kujundžić, a researcher specializing in gender-based violence, assesses the situation succinctly. “I believe that positive changes in rape law must emphasize a modern, evidence-based understanding of rape and sexual violence as a social problem.”
MEP and Ervin Incir (a member of the Socialist and Democratic Party and re-elected in the last EU Parliament elections) is optimistic, saying the directive “could put the necessary pressure on national governments to update their legal definitions so that: “We expect the European Commission to build on this progress and propose new legislation on rape in the future, consistent with international human rights standards such as those set out in the Istanbul Convention.”
The second rapporteur, Irish lawmaker Francis Fitzgerald (European People’s Party, not re-elected), is equally hopeful. “Consent must be at the heart of the conversation when it comes to sexual relations (…) I believe this guidance could bring about a fundamental change in the way we think about society, and could have an impact beyond criminal law alone.”
