France, Germany, Netherlands side with conservative EU countries in split over rape definition

Feminist NGOs have criticised France, Germany and the Netherlands for blocking the inclusion of consent-based definition of rape in the EU’s directive to combat violence against women as December’s negotiations on the law once again stalled.

To mark International Women’s Day on 8 March 2022, the European Commission proposed its directive to combat violence against women in Europe. The Commission’s proposed directive wants to better protect women from gender-based violence, aiming to ban forced marriages, female genital mutilation, sexist cyber-harassment and forced sterilisation.

The future law also seeks to establish a common definition of rape in Europe, which would make it a Eurocrime, to harmonise criminal penalties between the 27 member states and better protect victims.

While both the Parliament and the Commission supported a consent-based definition of rape, the Council’s mandate completely removed Article 5 which said that a non-consensual sex act is a criminal offence. Therefore now, nearly two years on, the directive is stuck in interinstitutional negotiations between the European Parliament, Council and Commission.

In leading the charge against a consent-based definition, France, Germany and the Netherlands are “playing into the hands of ultra-conservative states”, Camille Butin, advocacy officer at the International Planned Parenthood Federation (IPPF), told Euractiv.

France, Germany and the Netherlands, traditionally considered progressive regarding gender issues, voted against the inclusion of rape in the directive, alongside Poland, Hungary, Malta, the Czech Republic, Estonia, Bulgaria and Slovakia.

Every year, more than 100,000 rapes are recorded in the EU, according to the French National Institute for Statistics and Economic Studies (INSEE), with one in five women having suffered physical or sexual violence at the hands of a partner or friend, and three out of ten at the hands of a family member.

Paris under fire after latest refusal to adopt EU-wide rape definition

France again voted against incorporating rape into the EU directive on combating violence against women during inter-institutional trilogue talks between the Commission, the Council and the European Parliament on Wednesday (13 December).

No agreement was found at the last trilogue on 13 December, as the dossier stagnates, feminist associations said they are not optimistic that the directive will be adopted under the Belgian Presidency of the EU Council, which ends on 30 June.

The next round of negotiations is expected during in late February during which Council representatives would need to vote by a qualified majority to have consent-based rape included in the directive. However, without Germany and France on board, it is unlikely that the Council’s current position will change. 

“Introducing the notion of consent means recognising what victims have to say,” said Noémie Gardais, International Advocacy Officer at French NGO Le Planning Familial, in an interview with Euractiv.

Civil society, MEPs and NGOs are sceptical that the directive will be prioritised under the subsequent Hungarian presidency, according to Planning Familial’s Gardais.

“We are asking France and Germany to move on these issues,” said Frances Fitzgerald, Irish Conservative MEP (EPP) and co-rapporteur of the file for the Women’s Rights Committee (FEMM), at the time of the last trilogue.

Co-rapporteur of the file for the Civil Liberties Committee (LIBE), Swedish Social Democrat MEP (S&D), Evin Incir, said: “These countries must take the lead. They must not hide behind the legal argument.”

EU countries divided over the inclusion of rape to violence against women directive

EU member states are still divided on the inclusion of rape as an EU-level crime in the proposed directive on combating violence against women ahead of the third trilogue set to take place on Tuesday (14 November).

Notion of consent

According to the Council’s legal opinion including the criminalisation of non-consensual sex acts would overreach EU legal competencies. Rape is not included in the list of Euro-crimes, offences listed in Article 83 of the Treaty on the Functioning of the European Union (TFEU), for which the EU has legal competence, such as corruption, terrorism or sexual exploitation.

“We’ve had the opportunity to talk to members of the government and we find it hard to understand the French position. The reasons given are vague and evasive,” said Planning Familial’s Gardais. 

In France, the law does not include the notion of consent when it comes to defining rape, instead defining it as sexual penetration of any kind committed by violence, coercion, threat or surprise.

France has frequently stated that the European law would provide less protection to victims, without giving further details – disputed by feminist NGOs – and that the EU had no legal competence in the matter. 

The divisive issue has been passed from Justice Minister Eric Dupond-Moretti to President Emmanuel Macron.

“Macron describes himself as a feminist leader in Europe, but when given the opportunity to make a major impact on women’s rights, he blocks it,” said IPPF’s Butin.

While Dutch domestic legislation is changing to soon include the notion of consent, for the Netherlands, judging and condemning sexual crimes and violence should not fall within the EU’s remit. “They do not want the EU to interfere in such political matters,” Butin said.

As for Germany, the law partly includes the notion of consent as it is based on “no means no”, but the country supports the argument of legal overreach, Butin told Euractiv.

The definition of rape in the Commission’s directive is based on the Istanbul Convention, which France, Germany and the Netherlands have ratified. 

Commission urges EU countries to include rape in directive on violence against women

The Equality Commissioner urged EU countries to find an agreement with the Parliament on the directive to prevent and combat violence against women, urging for rape to be included in the file. 

[Edited by Giedrė Peseckytė/Nathalie Weatherald]

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