{"id":42604,"date":"2024-03-28T13:54:27","date_gmt":"2024-03-28T12:54:27","guid":{"rendered":"https:\/\/www.ceps.eu\/?p=42604"},"modified":"2024-03-28T13:54:27","modified_gmt":"2024-03-28T12:54:27","slug":"omitting-rape-from-the-eus-directive-on-combating-violence-against-women-is-a-huge-mistake","status":"publish","type":"post","link":"https:\/\/www.ceps.eu\/omitting-rape-from-the-eus-directive-on-combating-violence-against-women-is-a-huge-mistake\/","title":{"rendered":"Omitting rape from the EU’s Directive on combating violence against women is a huge mistake"},"content":{"rendered":"
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Even though International Women\u2019s Day has passed for 2024, it’s always a good time to speak about gender equality and women\u2019s and girls\u2019 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\u2019t fully protect women against it. The reason why is very simple \u2013 in its current form, which is now \u2018close to adoption<\/a>\u2019, it miserably falls short of protecting women against rape. This is a major mistake and should be urgently corrected.<\/p>\n

Two years ago, the European Commission proposed a Directive<\/a><\/u> that promised to do something historical for women\u2019s 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\u2019s eventually done without a real gender perspective.<\/p>\n

To align the EU with the Istanbul Convention<\/a>, the original proposal foresaw an article defining rape that approached Spain\u2019s groundbreaking \u2018only yes means yes\u2019 sexual consent law<\/a> passed in 2022.<\/p>\n

However, the high expectations raised by the Commission\u2019s 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 \u2013 and scandalously \u2013 not be included as one of the clearly listed EU crimes.<\/p>\n

A missed opportunity to be a leader in gender-based violence legislation<\/strong><\/h3>\n

The Directive\u2019s title refers to violence against women<\/em> (VAW), an expression that excludes those people who do not conform to the category of \u2018women\u2019, like sexual minorities and non-binary people, among others. These two terms \u2013 gender-based violence and VAW \u2013 have been used as synonyms for a long time, legitimised by common sense (arguably the least common of the senses\u2026) and some leading legislation.<\/p>\n

But language is performative, as American philosopher Judith Butler argued<\/a>. 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\u2019s General recommendation No. 35<\/a> amended a previous text by explicitly choosing the wording \u2018gender-based violence<\/em> against women\u2019<\/em>, a new and more inclusive way to address the question. This term \u2018makes explicit the gendered causes and impacts of the violence [\u2026 and] further strengthens the understanding of the violence as a social rather than an individual problem\u2019.<\/p>\n

First, the good points\u2026<\/strong><\/h3>\n

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\u2019 and women\u2019s rights, not as a cultural issue.<\/p>\n

These practices have actually long been the pieces de r\u00e9sistance<\/em> of some liberal (and yes, white, eurocentric and bourgeois) feminist trends and rhetoric that have used them to celebrate the \u2018<\/em>unique (!) emancipatory potential\u2019 of the \u2018Western woman\u2019 towards \u2018other <\/em>women on the margins<\/a>. Consequently, this has led to exacerbating \u2013 instead of discouraging \u2013 stereotypes towards women from certain populations, providing a basis for what sociologist Sara Farris called the \u2018phenomenon of femonationalism<\/a>\u2019.<\/p>\n

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.<\/p>\n

Moreover, the Commission\u2019s 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.<\/p>\n

\u2026 but alas, \u2018only yes is yes\u2019 is still not a Europe-wide definition<\/strong><\/h3>\n

Nevertheless, the reworked text \u2013 because of the political agreement between the EP and the Council \u2013 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.<\/p>\n

In fact, no consensus was found on the requirement of \u2018consent\u2019. Some Member States clearly stressed how difficult it was to standardise the law against rape<\/a> across Europe because legal approaches used to define consent are just too different. In practice, only a few Member States \u2013 like Spain \u2013 recognise that only an explicit and clear \u2018yes\u2019 means consent to sexual contact.<\/p>\n

Consequently, defining rape and legislating on it will remain largely under Member States\u2019 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 \u2018showing resistance\u2019 or \u2018menace\u2019 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 \u2018involuntary, temporary motor inhibition known as tonic immobility<\/a>\u2019.<\/p>\n

It\u2019s 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\u2019 best practices.<\/p>\n

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\u2019s human rights.<\/p>\n

Thus, is it really legitimate to exclude the crime of rape in a Directive on gender-based violence just because gender equality is \u2013 still \u2013 only a value and not a formal EU competence?<\/p>\n

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 \u2013 if needs must \u2013 later may cause short-term political headaches, but long term it would truly make Europe a world leader in fighting violence against women.<\/p>\n","protected":false},"excerpt":{"rendered":"

Even though International Women\u2019s Day has passed for 2024, it’s always a good time to speak about gender equality and women\u2019s and girls\u2019 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\u2019t fully protect women […]<\/p>\n","protected":false},"author":7,"featured_media":42605,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"mc4wp_mailchimp_campaign":[],"footnotes":""},"tags":[1058,1208],"class_list":["post-42604","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-human-rights","tag-gender-equality","topics-human-rights-justice","topics-diversity-equality-inclusion","units-grid"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/posts\/42604","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/comments?post=42604"}],"version-history":[{"count":3,"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/posts\/42604\/revisions"}],"predecessor-version":[{"id":42608,"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/posts\/42604\/revisions\/42608"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/media\/42605"}],"wp:attachment":[{"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/media?parent=42604"}],"wp:term":[{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ceps.eu\/wp-json\/wp\/v2\/tags?post=42604"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}