“This is a clear message to the whole of Europe, that we take violence against women seriously,” says the Irish Frances Fitzgerald, rapporteur of the European Parliament for a new EU directive. which aims to combat violence against women. However, as he presents to the press the results of the negotiations between the two EU legislators. – of the European Parliament and the Council – for an agreement in principle on Tuesday night (6 February), it is becoming clear that, despite great efforts, some issues remain open.

The criminal laws of the member states define the crime of rape in a different way and in the near future this treaty will remain as it is. Because the Council rejected during the negotiations the uniform standardization of the crime in question.

As Fitzgerald, a member of the European People’s Party (EPP), angrily commented, during the process she found “some very disturbing things about the attitude of some member states towards rape”. Many hoped that the definition of consensual rape could be introduced across Europe. In vain, it seems.

Different definitions of rape in the EU.

According to a months ago analysis by the umbrella organization “European Women’s Lobby” the principle “Only yes means yes” applies in 14 member states, such as in Sweden, Spain, Croatia and Greece. This principle is based on the idea that there must be explicit consent for sexual intercourse, in order for it not to be considered rape.

In Germany and Austria, on the contrary, “No means no”. Here it is up to the victim to express their non-consent.

As the European Women’s Lobby explains, in the remaining 11 member states resistance against the use of violence or in the context of a “threatening situation” is provided as an essential element for the crime of rape. This standardization has been adopted by most Eastern European states, Italy and France.

The importance of the Istanbul Convention

When the Commission submitted on March 8, 2022 the proposal for a single European legal framework, it also aimed to fulfill the objectives of the Istanbul Convention on preventing and combating violence against women and domestic violence, which entered into force in 2018. The convention has been ratified by most member states, while on June 1, 2023, the EU itself joined it.

The Istanbul Convention provides, among other things, that any non-consensual sexual intercourse should be criminalized. In Article 5 of its proposal, the Commission proposes a definition of rape which consists of the “non-consensual sexual treatment of a woman”. This proposal could introduce the principle of ‘Yes only means yes’ across the EU.

The major states are opposed to uniform regulation

However, in the Council opinion from May 2023, Article 5 is absent – ​​based on a legal opinion, the Council decided to delete it.

“The Council’s legal service and several other member states concluded that there is no sufficient legal basis for such a criminal provision at the level of European primary law,” German Justice Minister Marco Bussmann said two weeks ago. In this light, the E.E. does not have the authority to standardize such a uniform regulation. According to AFP, this position is shared by other countries, such as France and Hungary.

And here, however, there are member states that disagree. According to the rapporteur Fitzgerald, 13 of the 27 member states were in favor of standardizing the crime on the basis of express consent at a pan-European level.

Criticism of Germany and France

Women and women’s rights activists from across Europe have slammed states that have rejected the explicit consent provision for rape cases. More than 100 prominent women in Germany called on Minister Bussmann to reconsider his position. The European Women’s Lobby expressed its deep regret for the “outrageous decision by France and Germany to delete Article 5”.

Among its other provisions, the new Directive for the protection of women regulates, among other things, genital mutilation and forced marriages. Furthermore, incidents of cyber-violence, such as forwarding personal photos of other people to third parties, sending indecent images without being requested (cyberflashing) and stalking (cyberstalking), are to be criminalised. Official approval by the Council and Parliament is now awaited. Subsequently, the member states will have a window of time of three years to integrate the provisions into their national law.

All of this is undeniably progress. After the official announcements in the European Parliament, the German Minister of Family Affairs Lisa Paus spoke of a “landmark decision for women in Europe”. On the contrary, the representative of the feminist organization Terres des Femmes, Sina Tonk, comments on the result of the consultations with a rather ironic mood: “For millions of women the new directive means that their rights are strengthened – unless they are victims of rape.”