The first European legislation against violence against women should be adopted this Tuesday in Brussels.
It initially included an article, number 5, which defined rape by the absence of consent.
After many months of discussion, and due to opposition from some member countries, this measure disappeared.
Presented on March 8, 2022, the project aims to converge legislation and sanctions at European level on several types of violence: genital mutilation, forced marriage, disclosure of intimate videos, online harassment... The question of rape, however, crystallized the debate.
For a dozen European states, the Union would not be competent to legislate on this matter.
They claim that rape does not have the cross-border dimension required to qualify as a “
Eurocrime
”.
The laws of European countries differ in their definition of rape.
In French law, rape is characterized by an act of penetration committed by “
violence
, coercion, threat or surprise
”.
In Belgium, the authorities went further in 2002, by defining rape as sexual intercourse without consent.
Spain, for its part, stipulates that the agreement must be formulated explicitly.
Also read: “Considering that rape is only a social construction amounts to excusing it”
Condemnation of the French position
Hungary, Poland, Germany and France refuse to include the notion of consent in their definition of rape.
While Emmanuel Macron had declared that the “great cause” of his five-year term was the fight against violence against women, the French position provoked strong reactions.
MEPs, French and other EU countries, criticized it.
Raphaël Glucksmann (Place Publique), who sits within the Socialists and Democrats group in the European Parliament, denounces “
a disaster
”.
For the Swede Evin Incir, from the same group, “
it’s a red line
”.
Civil society organizations also condemned the French attitude.
Amnesty International and Family Planning judge that “
France's opposition constitutes a danger for millions of girls and women
”.
An opinion shared by around ten other NGOs, including Human Rights Watch, which described it as “
unacceptable that certain Member States persist in not responding to the need to fight against rape throughout the EU
".
Insufficient legislation?
According to the Women's Foundation, two thirds of cases of sexual violence reported in France were dismissed in 2020. Would Article 5 of the directive have led to a significant change in the judicial treatment of rape complaints?
According to some legal experts, not necessarily.
François Lavallière, magistrate and associate lecturer at Sciences Po Rennes, recalls that an international standard very close to this article already exists: article 36 of the Istanbul Convention on violence against women, ratified by France in 2014.
Now the subject is the center of attention.
This could lead to in-depth reflection on the notion of consent, where we would look towards countries like Sweden or Canada, where laws have completely changed the situation.
François Lavallière, magistrate and associate lecturer at Sciences Po Rennes
“
This legislation alone is not enough, it should be transposed into domestic law and detailed, with a redefinition of rape in French criminal law
,” indicates the professor to Le Figaro.
We must not remove the criteria that we already have, but for example say that before sexual intercourse, there must be an agreement, without it necessarily being written.
»
Whether the measure is adopted or not, the debates at European level are a good start for François Lavallière.
“
Now the subject is the center of attention.
This could lead to in-depth reflection on the notion of consent, where we would look towards countries like Sweden or Canada, where laws have completely changed the situation.
» In the systems of these two countries, the burden of proof has been reversed: the accused must demonstrate that the partner agreed.
Consent is free and must be expressed without doubt as to its validity.