Over months of negotiations, members of the European Parliament had sought to introduce consent-based definition of rape across the EU. However, it was clear that that had not been achieved when Frances Fitzgerald, an Irish member of the European Parliament and a rapporteur tasked with drawing up common guidelines on violence against women within the EU, presented the results of the negotiations between the European Parliament and the European Council to the media on Tuesday evening.
"For the first time, the European Union sends a clear message that we take violence against women seriously as an existential threat to our security," said Fitzgerald, who is vice-chair of the conservative European People's Party bloc of MEPs. But, she added, visibly annoyed, "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."
The various EU member states have different regulations for how rape is defined in their criminal codes, and this will remain the case for the foreseeable future. The European Council, which represents the member states, opposed unifying the definition of rape during the negotiation process.
'Yes means yes'
According to an October 2023 analysis by the European Women's Lobby (EWL), an umbrella organization of women's NGOs in the EU, the "only yes means yes" approach applies in 14 member states. These include Sweden, Spain, Croatia and Greece. The idea is that there must be clear consent to sexual contact.
In Germany and Austria, the "no means no" principle still applies. This requires victims to prove that they verbally refused to engage in sexual acts.
In the remaining 11 EU countries, which include most Eastern European member states, as well as France and Italy, resistance to violence or a threatening situation are still considered essential elements of rape, according to the EWL.
When the European Commission presented its proposal for a uniform EU law on March 8, 2022, it was in view of achieving the objectives of the Istanbul Convention, which came into force in member states from 2014 through 2018. Most EU member states have ratified this agreement, which aims to prevent and combat violence against women and domestic violence. On June 1, 2023, the European Council approved the accession of the EU as a whole to the convention.
The Istanbul Convention stipulates that "engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object" should be illegal. In its 2022 proposal for a directive on combating violence against women, the European Commission stated in Article 5 that "causing a woman to engage with another person in any non-consensual act of vaginal, anal or oral penetration of a sexual nature, with any bodily part or object" should be punishable as a criminal offense. This would have meant introducing the "only yes means yes" principle throughout the European Union. However, this article no longer appeared in a May 2023 report by the European Council, which had decided to delete it on the basis of legal advice.
"The council legal service and many other member states came to the conclusion that there was insufficient legal basis for this provision in European primary law," German Justice Minister Marco Buschmann said at an informal meeting in Brussels about two weeks ago. In line with this interpretation, the European Union does not have the competence to initiate legal standardization. According to the Agence France-Presse news agency, countries such as France and Hungary also hold this position.
The EU member states are in disagreement here, too. Fitzgerald said 13 of the 27 states were in favor of introducing the consent-based approach across the European Union.
The negative response from member states has led to vehement criticism from women and women's rights activists throughout the European Union. In Germany, more than 100 prominent women have publicly called on the justice minister to change his position. In a press release, European Women's Lobby policy and campaigns officer Irene Rosales said: "The EWL deeply regrets the blockage by the Council of many key aspects of the Directive, especially the outrageous decision imposed by France and Germany to delete Article 5 on the harmonized 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."
The new directive on the protection of women against violence includes rules against genital mutilation and forced marriages. Furthermore, it makes illegal the unwanted sharing of intimate photos and the unsolicited sending of offensive images (cyberflashing), as well as cyberstalking. The directive still has to be formally adopted by the European Council and European Parliament. The EU member states will then have three years to transpose the directive into national law.