On 8 March 2022, on the occasion of International Women’s Day, the European Commission propose a new directive to combat gender violence. The directive was supposed to create minimum standards common to all member states to act against various crimes including rape, female genital mutilation, sterilization and forced marriages, online stalking and the illicit dissemination of sexually explicit images or videos. Gender violence is a widespread problem and increasingly present in the European public and political debate, but the Union has not yet created specific laws to combat it at a supranational level.
Many member states have said they are in favor of moving forward with European legislation, but the proposal has so far gone through four stages of negotiation without being approved, mainly due to the opposition of important states within the Union such as Germany and France : At the heart of the problem is Article 5 of the Directive, which concerns the criminalization of rape.
A European directive is a legal act of the European Union which, if approved, requires member states to achieve certain objectives through the promulgation or modification of national laws: the way in which this must happen is not specified. To come into force, a directive proposed by the Commission must be approved by the European Parliament and the Council of the European Union, a body made up of the ministers of the member states which, together with the Parliament, holds the legislative power of the Union. This happens through negotiations between the three bodies called “trilogues”, during which the text is discussed and modified until it is approved.
In the case of the gender violence directive, the proposal was accepted by Parliament in June 2023, while several Council members continued to oppose it until 13 December, the date on which it was concluded the fourth trilogue, i.e. the fourth phase of negotiation, without the approval of a final text. In recent months some states such as Ireland and Portugal had decided to change their position and had approved the directive, while others had maintained their doubts and continued to ask for it to be modified.
Although there are states, such as Hungary, which oppose the entire directive, at the center of the discussion between the Council and the other two bodies is the objection raised by some countries, in particular France and Germany, regarding to the definition and inclusion of the crime of rape in the directive.
Article 5 of the directive proposes to criminalize rape at European level as “non-consensual sexual intercourse”, the same definition contained in the Istanbul Convention, which the European Union ratified right in the second half of 2023 after many of its members had done so in previous years.
Despite this, at the moment the lack of consent is at the heart of the laws that they punish rape only in about fifteen countries of the Union, while in the others, such as in France or Italy, for there to be a crime the element of coercion or threat must be demonstrated. Based on the decreasing importance attributed to consent, three different models of sexual criminal law applied in Europe can be distinguished: the pure consensual model, the limited one and the constrained one.
The pure consensual model gives maximum importance to consent: it means that there is a crime when in any type of sexual relationship the valid consent of the offended person is missing. This model is summed up in the phrase “only yes is yes,” where consent only exists when it is explicitly stated and not just intended. In recent years several countries, such as Spain, have changed their laws on sexual violence in this sense. The limited consensual model, however, gives importance not so much to consent, but to dissent: that is, an effective and manifest contrary will (dissent) of the person who has suffered violence is necessary. Finally, the constrained model, which is also the most widespread, does not explicitly attribute a central role to consent, but is based on the fact that sexual assaults, in order to be prosecuted and punished, must have certain characteristics: violence, threat, coercion. The main problem with this model is that some sexual assaults are not considered sexual assaults since they did not occur in a violent or threatening manner.
– Read also: Sexual violence and consent
Italian law falls into this third group, even if jurisprudence is increasingly oriented towards the second, that is, it tends to give importance to the presence of explicit dissent on the part of the victim. However, legally rape is still defined as a sexual act that someone is “forced” to perform or suffer through “violence or threat or abuse of authority”. In France, to these possibilities there is also that of “surprise”, which is based on the commonplace, disproved by many studies, that the majority of violence of this type is perpetrated by strangers, for example on the street, at night.
Data proves that rape is an act that in most cases is committed by known people: friends, colleagues, family members and also, very often, by partners, even within a marriage. According to ISTAT, more than 60 percent of rapes in Italy are committed by partners. However, rape within a relationship or marriage is not even considered violence under the laws of some member states, which is why the promoters of the directive argue that Article 5 absolutely must remain within the text.
Furthermore, the need to prove an explicit denial of consent is not in line with the results of the main studies on behavior adopted in cases of sexual violence, which have shown that during a rape, fear often immobilizes the victim and prevents her from speaking. or to react.
Some states still tied to a less generic definition of rape, such as France, they argue that calling it a non-consensual sexual act would end up harming the people who report it, because the lack of explicit consent would be more difficult to prove than the presence of coercion or threat. Other states, such as Sweden or Denmark, which have changed their legislation to link the definition of rape to the lack of explicit consent, argue that this has led to an increase in convictions for sexual violence, a very widespread but it is often difficult to prove in court also due to the way it is worded within the law.
– Read also: What is the problem with sentencing on rape cases in Italy
The most important objection of the Council, however, concerns the jurisdiction of the European Union: according to several states, the criminalization of non-consensual sexual acts does not fall within the legal competences of the Union. In fact, to include rape within the directive, the Commission referred to the crime of “sexual exploitation of women and minors” included in Article 83 of the Treaty on the Functioning of the European Union (TFEU). This article refers to crimes such as terrorism or corruption on which the Union has the right to legislate also due to the fact that they are often committed at an international level, while the rest of criminal law remains the exclusive competence of individual member states.
The Commission chose it because this article had already been used in 2011 to approve a directive concerning the abuse of minors and because it considers rape not as the act of one person against another but as a systemic and extremely widespread in society.
According to states such as France, Germany and Poland, however, this is not enough to make it fall within the scope of sexual exploitation. France he said repeatedly that she is not against the proposal as a whole, but that she fears that the inclusion of Article 5 in the final text would give states that are against it, such as Hungary, the possibility of having the entire directive annulled by the Court of justice of the European Union, on the grounds that the Union has no jurisdiction over the matter. Other countries instead argue that this directive would become a dangerous precedent that would give the Union the possibility of expanding its legislative powers beyond the limits agreed by the constituent treaties.
Many states in favor of the directive have argued that Spain, which holds the presidency of the Council of the European Union in the second half of 2023, has not done enough to promote a directive that its delegates in the Commission and Parliament instead they were very supportive. Now the negotiations will continue under the Belgian presidency, which will last until June 2024, the month in which the European elections will be held. Then the Council will be led for six months by Hungary and then by Poland, two countries that openly oppose the directive.
– Read also: A lesser-known way to prevent gender-based violence