There is no common definition of the crime of rape in the European Union’s first ever law to combat violence against women, agreed between member states and lawmakers on Tuesday.
The original draft of the bill, tabled by the European Commission in March 2022, defined the crime of rape as sex without consent – with no need for victims to provide evidence of force, threats or coercion.
It was based on the “only yes means yes” concept that has taken root in many member states amid a scourge of sexual crimes against women and girls.
But after months of painstaking negotiations, 14 member states continued to block the consent-based definition. They included Eastern states such as Bulgaria, Hungary and the Czech Republic, as well as France, Germany and the Netherlands, considered amongst the bloc’s most progressive nations.
Speaking from Strasbourg on Tuesday, Irish MEP Frances Fitzgerald, one of the Parliament’s lead negotiators on the file, said that the bloc has “unfinished business” to protect women from violence.
“Many of us would have got quite disturbing insights into the attitudes to rape in the member states when we could not get consent-based definition of rape into this Directive,” Fitzgerald explained after the negotiations.
“So that is a very big disappointment given the scale of the statistics of violence across the Union,” she added.
Around 5% of women in the EU have been raped after turning 15, the bloc’s Fundamental Rights Agency estimates.
Fitzgerald acknowledged there had been “movement” from some capitals, as 11 countries decided to get on board with the consent-based definition during negotiations.
In a last-minute concession, a revision clause was included to re-consider the scope of the bill after five years of implementation. An article was also added, in the hours before the final agreement was struck, obliging member states to “raise awareness” in relation to sexual consent and promote a “consent-based culture.”
But this stops far short of the Commission’s original ambition to criminalise non-consensual sex across the bloc.
The final bill does criminalise other forms of violence against women, including forced marriage and female genital mutilation (FMG). It also fills in legal loopholes in some EU nations on cyber violence, including online harassment and stalking.
“Cyber flashing,” where nude images are sent online without the receiver’s consent, as well as the non-consensual sharing of intimate images, otherwise known as “revenge porn,” will also become EU-wide crimes.
The rules will equally apply to the sharing of AI-generated porn images. It comes after pop sensation Taylor Swift became a victim of nude deepfakes last month, and amid disturbing reports that AI-generated explicit images are on the rise among minors.
Rape definition splits Europe
France and Germany have come under fire for blocking the EU-wide criminalisation of rape, as backing from either country would have been enough to get the consent-based definition over the line.
It has been excluded despite a vast majority of member states being parties to the Istanbul convention, which mandates the absence of consent as the definition of rape.
“I must say that I am disappointed that some of those member states are those that ratified the Istanbul convention, it is above and beyond my understanding,” said Swedish MEP Evin Incir, the other lead negotiator on the file.
French President Emmanuel Macron’s reluctance to back the move has sparked controversy in France. Macron promised to deliver on women’s rights in his second term but has been blasted after defending French actor Gérard Depardieu’s right to be presumed innocent after he was accused of sexual assault.
A spokesperson for the French government told Euronews their position was based on purely legal grounds, given that criminal law is a competence of the member states and that therefore rape must be prosecuted nationally.
France has some of the strictest sentences for sexual assault of all member states, the spokesperson added, as well as “generous and flexible” criteria for sexual assault to be considered rape.
The Parliament’s lead negotiators acknowledged that legal competence was a crucial factor in the resistance, adding that Eurosceptic sentiment and a reaction against Brussels’ desire to impose legislation had played into the dynamics of the talks.
Still, MEP Incir appealed to President Macron to “at least take a step forward for a consent-based definition of rape on a national level.” She equally asked Prime Minister Giorgia Meloni to amend Italy’s rape laws based on the “only yes means yes” concept, given that her government was in favour of the EU-wide definition.
Irene Rosales, policy and campaigns officer at the European Women’s Lobby, said she “deeply regrets” the “outrageous decision imposed by France and Germany to delete Article 5 on the harmonised definition of rape based on consent as per the standards of the Istanbul Convention.”
“It is completely hypocritical and a terrible missed opportunity to protect women and girls from one of the most heinous forms of violence,” she said.
The text that emerged from Tuesday’s negotiations still needs to be formally adopted by the European Parliament and the Council before coming into force.