Even though International Women’s Day has passed for 2024, it’s always a good time to speak about gender equality and women’s and girls’ rights. Above all, it’s good to talk about it now because the EU is probably about to end up with a Directive on combating violence against women that doesn’t fully protect women against it. The reason why is very simple – in its current form, which is now ‘close to adoption’, it miserably falls short of protecting women against rape. This is a major mistake and should be urgently corrected.
Two years ago, the European Commission proposed a Directive that promised to do something historical for women’s and girls’ rights. It was meant to be the first ever EU law to prevent and combat gender-based violence, typifying and including forms of violence that have so far been only recognised in a few Member States, even if it’s eventually done without a real gender perspective.
To align the EU with the Istanbul Convention, the original proposal foresaw an article defining rape that approached Spain’s groundbreaking ‘only yes means yes’ sexual consent law passed in 2022.
However, the high expectations raised by the Commission’s proposal were gradually frustrated as the text was negotiated and reworked between the European Parliament (EP) and the Council. Consequently, the crime of rape will likely – and scandalously – not be included as one of the clearly listed EU crimes.
A missed opportunity to be a leader in gender-based violence legislation
The Directive’s title refers to violence against women (VAW), an expression that excludes those people who do not conform to the category of ‘women’, like sexual minorities and non-binary people, among others. These two terms – gender-based violence and VAW – have been used as synonyms for a long time, legitimised by common sense (arguably the least common of the senses…) and some leading legislation.
But language is performative, as American philosopher Judith Butler argued. And the background that lies behind these two terms, as well as the consequences they entail in respect of public and legal action, are different. For example, at the UN level, CEDAW’s General recommendation No. 35 amended a previous text by explicitly choosing the wording ‘gender-based violence against women’, a new and more inclusive way to address the question. This term ‘makes explicit the gendered causes and impacts of the violence [… and] further strengthens the understanding of the violence as a social rather than an individual problem’.
First, the good points…
The proposed Directive features, in any event, several innovative points that are worth highlighting. For example, female genital mutilation (FGM) and forced marriage are now considered gender-related crimes. This is, in a sense, ground-breaking as these practices are finally recognised as a gender problem and a violation of girls’ and women’s rights, not as a cultural issue.
These practices have actually long been the pieces de résistance of some liberal (and yes, white, eurocentric and bourgeois) feminist trends and rhetoric that have used them to celebrate the ‘unique (!) emancipatory potential’ of the ‘Western woman’ towards ‘other women on the margins. Consequently, this has led to exacerbating – instead of discouraging – stereotypes towards women from certain populations, providing a basis for what sociologist Sara Farris called the ‘phenomenon of femonationalism’.
The risk of racialising gender is always present. Isolating the gender dimension from other dimensions, such as race, ethnicity and class, and denying the intersectional and complex nature of the dynamics that lie behind these practices, may controversially and involuntarily lead to nourishing racial prejudices and reinforcing anti-immigration policies.
Moreover, the Commission’s proposal finally acknowledges gender-based cyber violence as worthy of its own space within criminal law. The text foresees a new binding tool to address forms of violence that were not explicitly mentioned in previous legislation from a gender perspective, and this represents a big step forward.
… but alas, ‘only yes is yes’ is still not a Europe-wide definition
Nevertheless, the reworked text – because of the political agreement between the EP and the Council – could ultimately contain a glaring flaw, which was rightly criticised by feminist movements and activists, namely there is no definition of the crime of rape based on a lack of clear consent. Article 5, on the definition of rape, was discussed for almost two years and was eventually deleted from the draft.
In fact, no consensus was found on the requirement of ‘consent’. Some Member States clearly stressed how difficult it was to standardise the law against rape across Europe because legal approaches used to define consent are just too different. In practice, only a few Member States – like Spain – recognise that only an explicit and clear ‘yes’ means consent to sexual contact.
Consequently, defining rape and legislating on it will remain largely under Member States’ discretion. The EU is limiting itself to a general position on this heinous crime, which in some cases may (still) attach some importance to the act of ‘showing resistance’ or ‘menace’ when a sexual assault occurs. In other words, the EU position will continue, implicitly, to exclude cases of rape where, for whatever reason, the injured person manifests an ‘involuntary, temporary motor inhibition known as tonic immobility’.
It’s fair to acknowledge that the EU has achieved important milestones for advancing gender equality, such as typifying new gender-based crimes. Nevertheless, it left behind a major objective: combating gender-based violence by adopting a multi-dimensional and inclusive approach, in line with Member States’ best practices.
The glass is therefore only half full. One can only hope that gender-based violence remains a key priority at EU level, and no excuses (like the absence of a legal basis) are made to justify excluding some specific forms of violence, or only partially protecting women’s human rights.
Thus, is it really legitimate to exclude the crime of rape in a Directive on gender-based violence just because gender equality is – still – only a value and not a formal EU competence?
With that question in mind, EU lawmakers need to seriously reconsider their decision to remove rape from the text that will be formally submitted in April. Including it either now or – if needs must – later may cause short-term political headaches, but long term it would truly make Europe a world leader in fighting violence against women.
