Why the EU’s plan to criminalise non-consensual sex is falling apart

The first ever EU-wide legislation to protect women against violence, tabled by the Commission in 2022, aims to define the crime of rape as sex without consent – with no need for victims to provide evidence of force, threats or coercion.

It is based on the ‘only yes means yes’ concept and follows recent legal overhauls in countries such as Spain and the Netherlands to close loopholes and better protect victims. 

But negotiations with EU capitals have been at a deadlock for months as twelve member states – among them France, Germany, the Netherlands, Poland, Hungary and the Czech Republic – oppose the EU-wide definition.

France and Germany have come under fire for holding the blocking minority. Backing from either country would be enough to secure the qualified majority of fifteen member states representing 65% of the EU population needed to get the bill over the line.

Swedish MEP Evin Incir told Euornews she was “very disappointed” with French President Emmanuel Macron and German Justice Minister Marco Buschmann for working to block the legislation with Viktor Orbán, who is “dismantling women’s rights in Hungary.”

“It’s above and beyond my understanding how two liberal men can – hand in hand with an illiberal – form of minority,” Incir told Euronews.

“I expect this from Orbán, but I don’t expect this from Macron or Buschmann. But the reality tells us that there are three men right now deciding the future of women and girls,” she added.

Incir, who is the European Parliament’s lead negotiator on the file for the centre-left Socialists and Democrats (S&D), claims German Chancellor Olaf Scholz’ SPD party has backed the inclusion of rape based on the lack of consent, but that his liberal coalition partners are raising obstacles.

With time running out before the European elections in June, women’s rights campaigners fear the dispute could cause the entire legislation to fall, derailing EU plans to clamp down on other forms of violence including female genital mutilation, forced marriage and cyber violence such as the non-consensual sharing of intimate images, or ‘revenge porn.’

Sources close to the negotiations speaking on condition of anonymity told Euronews that while Germany refused to back the definition on legal grounds, France’s veto was “political.”

But a spokesperson for the French government claimed their position was also legally motivated. They say that since criminal law is a competence of the member states – with the exception of so-called EU crimes that have a cross-border dimension – crimes of rape must be prosecuted at the national level.

The spokesperson added that under French law, the criteria for sexual assault to be considered rape are “generous and flexible,” and that the crime is punishable by as much as 15 years imprisonment, compared to just eight in the EU Directive.

But the European Women’s Lobby has denounced the French and German veto as “disgraceful” and “completely hypocritical” given that both progressive countries are parties to the Istanbul convention, which mandates the absence of consent as the definition of rape.

Although the EU formally ratified the Convention in June last year, it is yet to enter into force in five member states – Bulgaria, the Czech Republic, Hungary, Lithuania and Slovakia.

Last Thursday, the Czech Senate failed to ratify the Convention after seven hours of heated debate. The treaty has sown a bitter culture war in the country, with lawmakers from the ruling right-wing ODS party leading calls to strike it down and the country’s justice minister denouncing its authors for “questionable ideological terms.”

“Stand up for women”

Around 5% of women in the EU have been raped after turning 15, the EU’s Fundamental Rights Agency estimates. The figure is likely to be much higher due to the gaping holes in data.

In recent years, horrific crimes including the 2016 gang rape of an 18-year-old girl in Spain known as ‘La Manada’, or the rape of two 11 and 12-year old girls by minors in a Naples suburb last year, have forced governments to consider legal reforms.

But legal protection, access to justice and victim support still vary wildly among European countries.

Marta Asensio, an activist and survivor of rape by chemical submission told Euronews that for years her partner used to make her unconscious with sedatives in order to sexually assault her.

“I had no bruises or any visible marks as my body was completely limp,” she explained. “The next day I felt horrible, used, dirty and angry with myself. When I told him not to do it again, he told me that I should be happy that he wanted me so badly.”

Marta is one of the estimated 22% of women in the EU who have been sexually assaulted at the hands of their partner or ex-partner.

But the crime she suffered, which she describes as a “brutal way of dominating me,” would not be punishable under the current laws in many EU member states.

Marta fears nations’ reluctance to adopt progressive laws aimed at protecting women is a sign of a deeply rooted patriarchal culture that is difficult to suppress.

“Blocking this historic opportunity to equalise women’s protection from rape is a mistake we cannot afford,” she said.

MEP Incir told Euronews she was hopeful member states would find political will to shift their positions at the last minute.

“They have still a possibility to change from the wrong side of history to the right side of history and stand for women and girls all across our Union,” Incir said.