EU member states have failed for more than a year to agree on a common definition of rape in Europe. An article in a European directive aims to place the absence of consent at the heart of the law. But several countries, including France, are opposed to it for legal reasons.
Guarantee a minimum level of protection for women victims of violence in the European Union. This is the subject of a European directive at the heart of a bitter debate between Member States for more than a year. Alongside Hungary and Poland, France opposes it against Spain, Belgium and Sweden.
One article of the text proposed on March 8, 2022 particularly divides European leaders: article 5, which wants to harmonize the definition of rape at European level and base it on the absence of consent.
The draft presented by the European Commission states that “the absence of consent should be a central and constitutive element of the definition of rape, given that rape is frequently carried out without physical violence or use of force.” The text goes even further. “Initial consent should be able to be withdrawn at any time during the act, while respecting the sexual autonomy of the victim, and should not automatically signify consent to future acts,” the directive reads.
The European Parliament voted in favor of the directive in July. Since then, several rounds of negotiations have failed between parliamentarians, the Commission and the European Council, where the heads of state or government sit. New talks are expected to resume in January.
Among those refractory to this article 5 is France, which thus finds itself in the camp of Hungary, Poland and the Czech Republic, all three opposed to the text.
Parliamentarians call on France to “review its position”
This position aroused the anger of around forty French deputies and senators, including Sandrine Rousseau and Yannick Jadot. “While in France, 0.6% of complaints for rape result in a conviction, the introduction of the notion of consent in the definition of rape would make a real difference for victims of violence and would help to remedy the shortcomings of the code penal”, they wrote in a letter addressed to Emmanuel Macron in November, asking him to “review France’s position”.
“France cannot continue to go against the direction of history and defend the abandonment of Article 5 in the Council of the European Union, alongside Poland and Hungary,” add the authors of this letter.
France, like Poland and Hungary, is opposed to the #rape is integrated into the directive 🇪🇺 on #violenceagainstwomen.
As the 1st trilogue on the directive opens tomorrow, we, parliamentarians, ask the government to review its position ⤵️ pic.twitter.com/qJ46LqDYVw
— Francesca Pasquini – Member of Parliament (@FMPasquini) November 13, 2023
Several MEPs, including Frenchman Raphaël Glucksmann, were also outraged by Paris’ position, believing that the French definition of rape was “outdated”. “While more than 100,000 rapes are recorded in the European Union each year, our country, France, refuses the European Council a major step forward to protect European women,” denounced the leader of the Place Publique movement through a petition which has so far collected nearly 190,000 signatures.
An “archaic and dusty” French model
What does French law say about rape? Currently, article 222-23 of the French penal code defines rape as “any act of sexual penetration, of whatever nature, or any oral-genital act committed on the person of another or on the person of the “perpetrator by violence, coercion, threat or surprise”.
“The rule in French law is that there is a presumption of consent to the sexual act. Such that all sexual acts are deemed to be consensual unless there is violence, coercion, threat or surprise”, analyzes the lawyer specializing in women’s rights, Anne Bouillon.
However, she believes, the idea of presumption of consent to the sexual act is “largely outdated”. “It’s an idea that carries the germ of the notion that women’s bodies would be permanently ‘accessible’ unless there is violence, constraint, threat or surprise.” For this lawyer, “there is urgent legislative work to be done, because our model is archaic and dusty. It comes from a patriarchal vision of things.”
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However, she pleads for an “intermediate position” which would introduce the notion of consent desired by the European Commission, without forgetting to add the notion of constraint – which is found in the French definition.
The risk of relying on a definition of rape based on the absence of consent, explains the lawyer, is to “place the characterization of the offense on the victim. We risk finding ourselves in situations where the the victim is asked to justify the way in which she consented or not. However, we know that in situations of rape, there are states of astonishment where the victims are no longer able to express themselves (at the time of the rape ).”
Is rape a “Eurocrime”?
To justify their refusal, France and the other Member States opposed to the European article on rape first raise a legal problem, arguing that the question of rape falls within the competence of the States, not that of the EU, which the legal services of the Parliament and the Commission refute.
The debate concerns in particular whether rape can be considered a “Eurocrime”, likely to fall under European jurisdiction. Eurocrimes are considered “offences which, by definition, deserve to be dealt with at EU level due to their particularly serious nature and their cross-border character”, explains the specialist site Euractiv. This category includes crimes relating to corruption, terrorism or sexual exploitation.
Another argument put forward by France: Paris is worried to see the entire European directive on violence against women sacrificed by the controversy over Article 5.
While there is currently no legal instrument to deal with this issue at European level, this directive also includes a section on forced marriages, genital mutilation among intersex people, sexist cyberharassment or even forced sterilization, which does not are not condemned in certain European countries.
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Paris fears that conservative states like Hungary will rely on the legal feverishness of the article on rape to reject the entire text before the Court of Justice of the EU, on the grounds that the EU is not competent.
But time is running out. The Spanish presidency of the Council of the EU, party to the negotiations on this directive, ends on December 31. Belgium will then take over until June 2024, followed by Hungary. The next European elections in June – with the fear of seeing far-right European parties winning seats in Parliament – could also shake up the debates on the fragile achievements in the fight against violence against women.